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BRARY 


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AMERICAN  CITIZEN  SERIES 

EDITED    BY 

ALBERT  BUSHNELL  HART,   LL.D. 


PUBLIC   OPINION  AND  POPULAR 
GOVERNMENT 

A.   LAWRENCE  LOWELL 


AMERICAN  CITIZEN  SERIES 

Edited  by  Albert  Bushnell  Hart,  LL.D. 


Outline  of  Practical  Sociology;  with  Special  Reference 
to  American  Conditions. 

B\-   Carroll   1).   Wright,    President   of   Clark   College. 
With  Maps  and  Diagrams.     Crown  8vo. 

Actual    Government    as    Applied     under     American 

Conditions. 
By  .\lbert  Bushnell  Hart,  LL.D.,  Eaton  Professor  of 
the  Science  of  Government  in  Harvard  University.     With 
6  Colored  ^laps  and  ii  other  Illustrations  and  Diagrams. 
CroNMi  8vo. 

Financial  History  of  the  United  States. 
By  DA\as  R.  Dewey,  Ph.D.,  LL.D.,  Professor  of  Eco- 
nomics  and   Statistics  in  the  Massachusetts  Institute  of 
Technology.     With  Diagrams.     Crown  8vo. 

Constitutional  Law  in  the  United  States. 
By  Emlix  McCl.ux.  LL.D.,  sometime  Lecturer  on  Consti- 
tutional Law  at  the  Stale  University  of  Iowa.    Crown  8vo. 

Principles  of  Economics;    with  Special  Reference  to 

American  Conditions. 
By   Edwln-  R.   .\.   Seligmax,  Ph.D.,   LL.D.,  McVickar 
Professor  of  Political  Economy  in  Columbia  University. 
With  6  Colored  and  22  other  Diagrams.     CrowTi  8vo. 

Organized  Democracy;  An  Introduction  to  the  Study 

of  American  Politics. 
By  Fkeukrick  .\.  Clevelxxd,  Ph.D..  LL.D.    Crown  8vo. 
Public  Opinion  and  Popular  Government. 
By  A.  Lawrence  Lowell.     President  of  Harxard  Uni- 
versity.    Crown  Svo. 


LONGMANS,  GREEN,  &  CO.:  NEW  YORK 


amettcan  Citizen  ©ettes 


Public  Opinion  and 
Popular  Government 


BY 

A.  LAWRENCE  LOWELL 

PRESIDENT   OF   HARVARD   UNIVERSITY 


LONGMANS,   GREEN,  AND   CO 

FOURTH  AVENUE  &  30TH  STREET,  NEW  YORK 
LONDON,  BOMBAY,  AND  CALCUTTA 

1913 


COPYRIGHT,     191  3,     BY 
LONGMANS,    GREEN,     AND    CO. 


THE  •PLIMPTON -PRESS 
NORWOOD-UASS-U-S-A 


Preface 

The  substance  of  this  volume  was  delivered  in  the 
spring  of  1909  as  the  James  Schouler  lectures  of  that 
year  at  Johns  Hopkins  University,  but  the  pressure 
of  other  duties  has  delayed  the  preparation  of  the 
book  for  publication  until  the  present  time.  The 
contents  speak  for  themselves. 

For  the  collection  of  the  data  relating  to  the 
actual  use  of  the  referendum  and  the  initiative, 
as  well  as  some  other  matters,  I  am  indebted  to 
Prof.  Thomas  M.  Hoover,  formerly  of  Harvard, 
now  of  the  Ohio  State  University,  to  Mr.  Henry  W. 
Cleary,  formerly  of  Harvard  College  and  the  Harvard 
Law  School,  to  M.  Emil  Hiigli  of  Bern,  and  to  my 
colleague  Prof.  W.  E.  Rappard  of  Harvard.  I  want 
also  to  acknowledge  with  gratitude  the  courtesy  of 
the  chancelleries  of  the  Swiss  cantons  for  their  care 
in  verifying  the  lists  and  figures  sent  to  them,  and 
of  the  recording  officers  of  the  several  American 
states  for  the  information  they  have  kindly  sent  me 
about  the  voting  in  their  states. 

A.    LAWRENCE    LOWELL 

Cambridge,  June  5,  1913 


Introductory  Note 

This  volume  of  the  American  Citizen  Series 
needs  no  editorial  exposition,  except  to  make  clear 
its  place  in  the  series,  and  its  relation  to  the  other 
volumes.  The  intent  of  the  various  writers  is  to 
lay  hold  of  those  aspects  and  applications  of  Amer- 
ican life  which  affect  the  organization  of  society  and 
government.  Therefore,  economics,  finance,  social 
organization,  guiding  principles  of  government,  con- 
stitutional forms,  the  nature  of  democracy,  have 
been  discussed  in  one  or  another  of  the  volumes 
that  have  already  appeared.  President  Lowell  deals 
with  the  most  difficult  and  the  most  momentous 
question  of  government, — how  to  transmit  the  force 
of  individual  opinion  and  preference  into  public 
action.     This  is  the  crux  of  popular  institutions. 

As  throughout  the  series  the  effort  of  the  author 
is  to  throw  aside  the  husk  and  find  the  kernel;  to 
penetrate  through  the  current  political  phrases  and 
show  the  psychological  forces  which  lead  to  states 
of  mind  which  are  finally  translated  into  laws  and 
decisions. 

This  process  inevitably  leads  to  a  study  both  of 
representative  action  and  of  the  various  forms  of 
direct  legislation.  The  deductions  are  backed  up 
by  two  appendices  which  embody  the  most  complete 
statement  of  the  practice  of  the  initiative  and  refer- 


viii  Introduction 

endum  which  has  so  far  been  made.  The  pre- 
dictions, guesses  and  criticisms  which  are  being 
made  by  the  press  and  by  experts  can  be  tested  up 
to  and  through  1912  by  the  recorded  experience  of 
sixteen  Swiss  cantons  and  thirteen  American  states. 
The  arrangement  and  subdivision  of  the  work 
make  it  possible  for  high  school  and  college  classes 
to  study  the  important  topics  treated  in  this  vol- 
ume; it  carries  with  it  a  body  of  facts  which 
illustrate    the    text;    and    it    opens    up    the   whole 

subject- 

ALBERT  BUSHNELL  HART 


Table  of  Contents 


Part  I 

THE  NATURE  OF  PUBLIC  OPINION 

CHAPTER  PAGE 

I.   Public  Opinion  Must  be  Public 

1.  Opinion  of  a  Majority  not  Always  Public 4 

2.  Unanimity  not  Necessary 7 

3.  Rousseau's  Common  Will 8 

4.  Public  Opinion  and  Universal  Consent 9 

5.  Consent  and  Force 10 

6.  Numbers  and  Intensity  in  Opinion 12 

"7.   Conclusion 14 

II.   Public  Opinion  Must  be  Opinion 

8.  Opinions  are  Only  in  Part  Rational 16 

9.  Opinions  Adopted  from  Others  may  be  Real  Opinions    .  18 

10.  If  an  Integral  Part  of  the  Believer's  Philosophy       ...  19 

11.  Otherwise  an  Opinion  Must  Involve  a  Personal  Judg- 

ment of  Facts 22 

12.  Importance  of  Distinguishing  the  Real  Subject  of  Public 

Opinion 24 

13.  Opinion  and  Desire 20 

III.  Conditions  Essential  for  Public  Opinion 

14.  Doctrine  of  the  Harmony  of  Interests 28 

15.  Growth  of  Race  Feeling 31 

16.  Irreconcilables  in  Politics      32 

17.  Homogeneity    of    Population    a    Condition    of    Public 

Opinion 34 

18.  Another  Condition  is  Freedom  of  Expressing  Dissent     .  36 

IV.  Questions  to  which  Public  Opinion  Can  Apply 

19.  Limits  Imposed  by  the  Necessity  that  the  Opinion  be 

Public 41 

20.  Benefit  of  a  Written  Constitution 44 


X  Contents 

CHAPTER  PAGE 

IV.    QUESTIONS  TO  ■v^^^ICH  Pltblic  Opixtox  Can  Apply  (continued) 
il.   Limits  Imposed  by  the  Nature  of  Opinion 45 

22.  Knowledge  of  Facts  Increasingly  Difficult 46 

23.  Examples 50 

24.  Difficulty  in  Foretelling  whether  a  Public  Opinion  will 

be  Formed 53 


Part  II 


THE  FUNCTION   OF  PARTIES 

V.  Advertisement  and  Brokerage 

25.  Mobility  of  Modem  Life 57 

26.  The  Age  of  Advertisement 58 

27.  The  Age  of  Brokers 60 

28.  Politicians  as  Brokers 61 

29.  Parties  the  Means  by  which  Brokerage  is  Conducted    .  64 

30.  Parties  Enable  the  Voters  to  Act  in  Masses 67 

3L    Parties  Frame  the  Issues  for  Popular  Decision     ....  69 

VI.  The  Confusion  of  Issues 

32.  The  Motives  that   Determine  an   Election   arc   Often 

Obscure 72 

33.  But    the    Confusion    is    Less    than  if    Parties  did  not 

Exist 75 

34.  In  England  the  People  Pass  Judgment  More  on  Measures, 

in  the  United  St<ites  More  on  Men 76 

35.  Multiplicity  of  Parties  in  Continental  Europe     ....  79 

36.  Two  Parties  a  Result  of  Political  Maturity 81 

VII.  The  Falsification  of  Public  Opinion 

37.  Parties  Cause  a  Bias      86 

38.  Parties  Produce  Unnatural  Divisions 88 

39.  People  can  Say  Only  "Yes"  or  "No" 91 

40.  InBucnce  of  Moderate  Elements ...  92 

41.  Influence  of  Extreme  Elements 95 

4-2.    Parties  Prevent  Distortion  by  Popular  Vagaries      ...  96 

43.  Parties  an  Obstacle  to  Despotism 97 

VI n.  The  .\buse  of  Party 

44.  Need  of  Scientific  Study  of  Party  Government    ....  100 

45.  The  Professional  Politician 102 

46.  The  People  Attempt  too  Much 105 

47.  Frontier  Conditions 109 


Contents  xi 


Part  III 

METHODS  OF  EXPRESSING  PUBLIC  OPINION 

CHAPTER  PAGE 

IX.  Representation 

48.  An  Election  does  not  Always  Express  Public  Opinion   .  113 

49.  Representation    of    the    Whole    Nation    and    of    Con- 

stituencies      115 

50.  Comparison  of  England  and  the  United  States    .    .    .    .  117 

51.  Remedies  Proposed 120 

52.  Proportional  Representation 122 

53.  The  Theories  of  Delegation  and  of  Personal  Judgment  124 

54.  Comparison  of  England  and  the  United  States     ....  125 

X.  Loss  OF  Confidence  in  Representative  Bodies 

55.  The  Rise  of  Modern  Legislatures 129 

56.  Recent  Distrust  of  Legislatures 130 

57.  Causes  of  Loss  of  Confidence 131 

58.  The  Pressure  of  Local  Interests 133 

59.  The  Pressure  of  Private  Interests 134 

60.  The  Lobby 135 

61.  Private  Influences  on  Elections 137 

62.  Defects  of  Legislatures  Exaggerated 139 

63.  Results  of  the  Confusion  of  Thought      142 

64.  Remedies  Devised  for  Legislative  Defects 144 

65.  The  Recall 147 

66.  The  Direct  Primary 149 

XI.  Direct  Popular  Action 

67.  The  Referendum 152 

68.  The  Town  Meeting 152 

69.  The  Referendum 154 

70.  Reasons  for  the  Referendum 155 

(a)  Distrust  of  the  Legislature 155 

(b)  Desire  to  Separate  Issues 157 

71.  The  Sphere  of  Efficiency 159 

72.  Negative  and  Positive  Forms  of  Popular  Votes    .    .    .  162 

XII.  The  Referendum  in  Switzerland 

73.  Compulsory  and  Optional 164 

74.  The  Results 165 


xii  Contents 

CHAPTER  PAGE 

XIII.  The  Referexdoi  ix  America 

75.  Referendum  on  Constitutional  Amendments 169 

76.  Referendum  on  Special  Legislative  Acts 171 

77.  The  General  Referendum 173 

78.  Actual  Use  of  the  General  Referendum 174 

(a)  The  Emergency  Clause 174 

(6)   Number  of  Laws  Rejected 176 

(c)    Character  of  Laws  Rejected 180 

79.  Size  of  the  Vote  Cast 184 

80.  The  Vote  Cast  in  Switzerland 185 

81.  The  Vote  Cast  in  America 187 

82.  Attempts  to  Stimulate  Opinion 191 

83.  The  Local  Referendum 193 

84.  Advantages  of  the  Local  Referendum 195 

XIV.  The  Initiative 

85.  The  Nature  of  the  Initiative 198 

86.  Results  in  the  Swiss  Confederation 199 

87.  Results  in  the  Cantons      200 

88.  Tendencies  in  Switzerland 201 

89.  Results  of  the  Initiative  in  America 203 

90.  Nature  of  the  Laws  Enacted  by  Initiative 205 

91.  Nature  of  Proposals  Rejected 207 

92.  The  Initiative  and  Pubhc  Opinion 209 

93.  Complex  Subjects  Presented  by  Initiative 211 

94.  Close  Votes  and  Public  Opinion 214 

95.  StabiUty  as  E\'idence  of  Opinion 216 

96.  Defects  of  the  Initiative 217 

97.  Impossibility  of  Amendment 219 

98.  Does  the  Pubhc  Initiate 220 

XV.  Reflections  ox  Direct  Legisl..\tion 

99.  Trustworthiness  of  the  Result 224 

100.  Delay  of  L<'gislation  by  Popular  Votes 226 

101.  Indirect  Effects  of  Direct  Legislation 228 

102.  Measures  Suited  for  Popular  Votes 231 

103.  Direct  Legislation  will  not  Bring  the  Millennium     .    .    .  233 


Contents  xiii 


Part  IV 


THE    REGULATION    OF    MATTERS    TO    WHICH    PUBLIC 
OPL\ION   CANxNOT   DIRECTLY   APPLY 

CHAPTER  PAGE 

XVI.  Representation  by  Sample 

104.  Three  Methods  of  Delegatmg  Authority 240 

105.  The  Jury  a  Sample  of  the  Public 242 

106.  The  Object  of  Rotation  in  Office 243 

107.  The  Use  of  the  Lot 244 

108.  Selected  Samples  of  the  Public 246 

109.  Private  Bill  Committees  in  Parliament 248 

110.  Committee  Hearings  in  America 249 

111.  Public  Hearings  in  Massachusetts 250 

112.  Public  Hearings  in  Other  States 254 

113.  The  Three  Objects  that  Public  Officers  Serve  are  Often 

Combined 256 

114.  Selection  of  Different  Kinds  of  Officers 258 

XVII.  Expert  Administrators  in  Popular  Government 

115.  Lack  of  Experts  in  Athens 264 

116.  Expert  Administrators  in  Rome 265 

117.  Experts  in  Monarchies  and  Democracies 268 

118.  The  Need  of  Experts  To-day 271 

119.  Limited  Use  of  Experts  in  American  Government     .    .   274 

XVIII.  Experts  in  Municipal  Government 

120.  Cities  in  America  are  of  Recent  Growth 278 

121.  The  Lesson  of  European  Cities      280 

122.  The  Model  Charter  Discourages  Experts 282 

123.  City  Government  by  Commission 285 

XIX.  Control  and  Recruiting  of  Experts 

124.  Cause  of  the  Distrust  of  Experts 289 

125.  Ignorance  of  the  Relation  of  Experts  and  Laymen   .    .   291 

126.  Examples  of  the  Proper  Relation 293 

127.  The  True  Relation  between  Experts  and  Representa- 

tives of  the  Public 295 


xiv  Contents 

CHAPTER  PAGE 

XIX.   CoxTROL  AND  Recruitixg  OF  ExPERTs  {continued). 

128.    Methods  of  Creating  the  True  Relation 298 

12i).    Recruiting  Experts  for  the  PubUc  Ser\-ice 300 

APPENDIX    A.     Results  of  the  Referendum  and  Initiative 
IN  Switzerland 

The  Swiss  Confederation,  1874-1912       306 

Canton  of  Aargau,  1893-1912 311 

Canton  of  Basle  City,  1895-1912 315 

Canton  of  Basle  Rural,  1893-1912 318 

Canton  of  Bern,  1893-1912 322 

Canton  of  Geneva,  1882-1912     328 

Canton  of  the  Orisons,    1893-1910 330 

Canton  of  Lucerne,  1893-1909 333 

Canton  of  St.  Gall.  1893-1912 334 

Canton  of  Schaffhausen,  1895-1912 336 

Canton  of  Schwyz,  1895-1910 338 

Canton  of  Solothurn,  1893-1909 341 

Canton  of  Thurgau,  1893-1910  347 

Canton  of  the  Valais,  1895-1913 350 

Canton  of  Vaud,  1902-1910 353 

Canton  of  Zurich,  1893-1908       353 

APPENDIX   B.     Results  of  the  Referendum  and  Initiative 
IN  America 

Arizona,  1912 368 

Arkansas,  1912 370 

California,  1912 371 

Colorado,  1912 372 

Maine,  1910-1912 376 

Missouri,  1910-1912 377 

Montana,  1912 379 

Nevada.  1908-1912      379 

New  Mexico.  1912 380 

Oklahoma,  1908-1912 381 

Oregon.  1904-1912 384 

South  Dakota,  1908-  1912 395 

UUih,  1912 398 

INDEX 401 


Part  I 
The  Nature  of  Public  Opinion 


Public  Opinion  and  Popular 
Government 


Part  I 
The  Nature  of  Public  Opinion 


CHAPTER   I 

PUBLIC  OPINION  MUST  BE  PUBLIC 

"Vox  Populi  may  be  Vox  Dei,  but  very  little 
attention  shows  that  there  has  never  been  any  agree- 
ment as  to  what  Vox  means  or  as  to  what  Populus 
means."  ^  In  spite  of  endless  discussions  about 
democracy,  this  remark  of  Sir  Henry  Maine  is  still 
so  far  true  that  no  other  excuse  is  needed  for  study- 
ing the  conceptions  which  lie  at  the  very  base  of 
popular  government.  In  doing  so  one  must  distin- 
guish the  form  from  the  substance;  for  the  world 
of  politics  is  full  of  forms  in  which  the  spirit  is  dead 
—  mere  shams,  but  sometimes  not  recognized  as 
such  even  by  the  chief  actors,  sometimes  deceiving 
the  outside  multitude,  sometimes  no  longer  mis- 
leading anyone.  Shams  are,  indeed,  not  without 
value.  Political  shams  have  done  for  English  gov- 
ernment what  fictions  have  done  for  English  law. 
They  have  promoted  growth  without  revolutionary 
change.     But  while  shams  play  an  important  part 

^  Maine,  Popular  Government,  pp.  184,  185. 
3 


4  The  Nature  of  Public  Opinion  [§  1 

in  political  evolution,  they  are  snares  for  the  political 
philosopher  who  fails  to  see  through  them,  who 
ascribes  to  the  forms  a  meaning  that  they  do  not 
really  possess.  Popular  government  may  in  sub- 
stance exist  under  the  form  of  a  monarchy,  and  an 
autocratic  despotism  can  be  set  up  without  destroy- 
ing the  forms  of  democracy.  If  we  look  through 
the  forms  to  observe  the  vital  forces  behind  them; 
if  we  fix  our  attention,  not  on  the  procedure,  the 
extent  of  the  franchise,  the  machinery  of  elections, 
and  such  outward  things,  but  on  the  essence  of  the 
matter,  popular  government,  in  one  important  aspect 
at  least,  may  be  said  to  consist  of  the  control  of 
political  affairs  by  public  opinion.  In  this  book, 
therefore,  an  attempt  is  made  to  analyze  public 
opinion  in  order  to  determine  its  nature,  the  con- 
ditions under  which  it  can  exist,  the  subjects  to 
which  it  can  apply,  the  methods  by  which  it  can 
be  faithfully  expressed,  and  the  regulation  under  a 
popular  government  of  affairs  to  which  it  is  not 
directly  applicable. 

Each  of  the  two  words  that  make  up  the  expres- 
sion "public  opinion"  is  significant,  and  each  of 
them  may  be  examined  by  itself.  To  fulfil  the 
requirement  an  opinion  must  be  public,  and  it 
must  be  really  an  opinion.  Let  us  begin  with  the 
first  of  these  qualities. 

1.    Opinion  of  a  Majority  not  always  Public 

If  two  highwaymen  meet  a  belated  traveller  on 
a  dark  road  and  propose  to  relieve  him  of  his  watch 
and  wallet,  it  would  clearlv  be  an  abuse  of  terms  to 


§  1]  Majority  not  always  Enough  5 

say  that  in  the  assemblage  on  that  lonely  spot  there 
was  a  public  opinion  in  favor  of  a  redistribution  of 
property.  Nor  would  it  make  any  difference,  for 
this  purpose,  whether  there  were  two  highwaymen 
and  one  traveller,  or  one  robber  and  two  victims. 
The  absurdity  in  such  a  case  of  speaking  about  the 
duty  of  the  minority  to  submit  to  the  verdict  of 
public  opinion  is  self-evident;  and  it  is  not  due  to 
the  fact  that  the  three  men  on  the  road  form  part 
of  a  larger  community,  or  that  they  are  subject  to 
the  jurisdiction  of  a  common  government.  The 
expression  would  be  quite  as  inappropriate  if  no 
organized  state  existed;  on  a  savage  island,  for  ex- 
ample, where  two  cannibals  were  greedy  to  devour 
one  shipwrecked  mariner.  In  short  the  three  men 
in  each  of  the  cases  supposed  do  not  form  a  com- 
munity that  is  capable  of  a  public  opinion  on  the 
question  involved.  May  this  not  be  equally  true 
under  an  organized  government,  among  people  that 
are  for  certain  purposes  a  community.'* 

To  take  an  illustration  nearer  home.  At  the 
time  of  the  Reconstruction  that  followed  the  Ameri- 
can Civil  War  the  question  whether  public  opinion 
in  a  southern  state  was,  or  was  not,  in  favor  of 
extending  the  suffrage  to  the  negroes  could  not  in 
any  true  sense  be  said  to  depend  on  which  of  the 
two  races  had  a  slight  numerical  majority.  One 
opinion  may  have  been  public  or  general  in  regard 
to  the  whites,  the  other  public  or  general  in  regard 
to  the  negroes,  but  neither  opinion  was  public  or 
general  in  regard  to  the  whole  population.  Examples 
of  this  kind  could  be  multiplied  indefinitely.     They 


6  The  Nature  of  Public  Opinion  [§  1 

can  be  found  in  Ireland,  in  Austria-Hungary,  in 
Turkey,  in  India,  in  any  country  where  the  cleavage 
of  race,  religion,  or  politics  is  sharp  and  deep  enough 
to  cut  the  community  into  fragments  too  far  apart 
for  an  accord  on  fundamental  matters.  WTien  the 
Mohammedans  spread  the  faith  of  Islam  by  the 
sword,  could  the  question  whether  public  opinion 
in  a  conquered  countrv'  favored  Christianity  or 
Mohammedanism  be  said  to  depend  on  a  small 
preponderance  in  numbers  of  the  Christians  or  the 
followers  of  the  Prophet;  and  were  the  minority 
under  any  obligation  to  surrender  their  creed?  The 
government  was  entirely  in  the  hands  of  the  Mussul- 
mans, but  would  it  be  rational  to  assert  that  if  they 
numbered  ninety-nine  thousand  against  one  hundred 
thousand  Christians  public  opinion  in  the  country 
was  against  them,  whereas  if  they  were  to  massacre 
two  thousand  of  the  Christians  public  opinion  would 
then  be  on  their  side?  Likewise  in  Bohemia  at  the 
present  day,  where  the  Germans  and  the  Czechs 
are  struggling  for  supremacy,  would  there  not  be 
an  obvious  fallacy  in  claiming  that  whichever  race 
could  show  a  bare  majority  would  have  the  support 
of  public  opinion  in  requiring  its  owti  language  to 
be  taught  to  all  the  children  in  the  schools. 

In  all  these  instances  an  opinion  cannot  be  public 
or  general  with  respect  to  both  elements  in  the  state. 
For  that  purpose  they  are  as  distinct  as  if  they 
belonged  to  different  commonwealths.  You  may 
count  heads,  you  may  break  heads,  you  may  impose 
uniformity  by  force;  but  on  the  matters  at  stake 
the  two  elements  do  not  form  a  community  capable 


§  2]  Unanimity  not  Necessary  7 

of  an  opinion  that  is  in  any  rational  sense  public  or 
general.  As  Mr.  Bryce  points  out,  a  great  deal  of 
confusion  arises  from  using  the  term  sometimes  to 
mean  everybody's  views,  that  is,  the  aggregate  of 
all  that  is  thought,  and  sometimes  the  views  of  the 
majority.^  If  we  are  to  employ  the  term  in  a  sense 
that  is  significant  for  government,  that  imports  any 
obligation  moral  or  political  on  the  part  of  the  mi- 
nority, surely  enough  has  been  said  to  show  that  the 
opinion  of  a  mere  majority  does  not  by  itself  always 
suffice.     Something  more  is  clearly  needed. 

2.   Unanimity  not  Necessary 

But  if  the  opinion  of  a  majority  does  not  of  itself 
constitute  a  public  opinion,  it  is  equally  certain  that 
unanimity  is  not  required.  To  confine  the  term 
to  cases  where  there  is  no  dissent  would  deprive 
of  it  all  value  and  would  be  equivalent  to  saying 
that  it  rarely,  if  ever,  exists.  Moreover,  unanimous 
opinion  is  of  no  importance  for  our  purpose,  because 
it  is  perfectly  sure  to  be  effective  in  any  form  of 
government,  however  despotic,  and  it  is,  therefore, 
of  no  particular  interest  in  the  study  of  democracy. 
Legislation  by  unanimity  was  actually  tried  in  the 
kingdom  of  Poland,  where  each  member  of  the 
assembly  had  the  right  of  liherum  veto  on  any  meas- 
ure, and  it  prevented  progress,  fostered  violence,  and 
spelled  failure.  The  Polish  system  has  been  lauded 
as  the  acme  of  liberty,  but  in  fact  it  was  directly 
opposed  to  the  fundamental  principle  of  modern 
popular  government;  that  is,  the  conduct  of  public 

^  American  Commonwealth,  Ed.  of  1910,  vol  ii,  p.  251. 


8  The  Nature  of  Public  Opinion  [§  3 

affairs  in  accord  with  a  public  opinion  which  is 
general,  although  not  universal,  and  which  implies 
under  certain  conditions  a  duty  on  the  part  of  the 
minority  to  submit. 

3.   Rousseau's  Common  Will 

If  then  unanimity  is  not  necessary  to  pubHc 
opinion  and  a  majority  is  not  enough,  where  shall 
we  seek  the  essential  elements  of  its  existence?  A 
suggestion  much  in  point  may  be  found  in  the  specu- 
lations of  the  most  ingenious  political  philosopher 
of  the  eighteenth  century.  In  his  Control  Social 
Rousseau  attempts  to  prove  that  in  becoming  a 
member  of  a  state  the  natural  man  may  remain 
perfectly  free  and  continue  to  obey  only  his  ow^n 
will.  He  tells  us  that  in  forming  a  state  men  desire 
to  enforce  the  common  will  of  all  the  members;  and 
he  takes  as  the  basis  of  all  political  action  this 
common  will,  which  is  nearly  akin  to  our  idea  of 
public  opinion.  Xow%  in  order  to  reconcile  the 
absolute  freedom  of  every  citizen  to  obey  only  his 
own  volition,  with  the  passing  of  laws  in  every 
civihzed  state  against  opposition,  he  says  that  when 
the  assembled  people  are  consulted  on  any  measure, 
their  votes  express,  not  their  personal  wishes  upon 
the  subject,  but  their  opinions  in  regard  to  the 
common  will,  and  thus  the  defeated  minority  have 
not  had  their  desires  thwarted,  but  have  simply  been 
mistaken  in  their  view^s  about  the  common  will. 
All  men,  he  insists,  want  to  give  effect  to  this  com- 
mon will,  which  becomes,  therefore,  the  universal 
will  of  everyone  and  is  always  carried  out. 


§  4]    Public  Opinion  and  Universal  Consent    9 

4.  Public  Opinion  and  Universal  Consent 

Though  stated  in  a  somewhat  fanciful  way,  the 
theory  contains  a  highly  important  truth,  which 
may  be  clothed  in  a  more  modern  dress.  A  body 
of  men  are  politically  capable  of  a  public  opinion 
only  so  far  as  they  are  agreed  upon  the  ends  and 
aims  of  government  and  upon  the  principles  by  which 
those  ends  shall  be  attained.  They  must  be  united, 
also,  about  the  means  whereby  the  action  of  the 
government  is  to  be  determined,  in  a  conviction,  for 
example,  that  the  views  of  a  majority  —  or  it  may 
be  some  other  portion  of  their  numbers  —  ought  to 
prevail;  and  a  political  community  as  a  whole  is 
capable  of  public  opinion  only  when  this  is  true  of 
the  great  bulk  of  the  citizens.  Such  an  assumption 
was  implied,  though  usually  not  expressed  in  all 
theories  of  the  Social  Compact;  and,  indeed,  it  is 
involved  in  all  theories  that  base  rightful  govern- 
ment upon  the  consent  of  the  governed,  for  the  con- 
sent required  is  not  a  universal  approval  by  all  the 
people  of  every  measure  enacted,  but  a  consensus 
in  regard  to  the  legitimate  character  of  the  ruling 
authority  and  its  right  to  decide  the  questions  that 
arise. 

The  power  of  the  courts  in  America  to  hold 
statutes  unconstitutional  furnishes  an  illustration 
of  this  doctrine.  It  rests  upon  a  distinction  between 
those  things  that  may  be  done  by  ordinary  legisla- 
tive procedure  and  those  that  may  not;  the  theory 
being  that  in  the  case  of  the  former  the  people  have 
consented  to  abide  by  the  decision  of  the  majority 


10  The  Nature  of  Public  Opinion         [§  5 

as  expressed  by  their  representatives,  whereas  in 
the  case  of  matters  not  placed  by  the  constitution 
within  the  competence  of  the  legislature,  the  people 
as  a  whole  have  given  no  such  consent.  ^Yith  regard 
to  these  they  have  agreed  to  abide  onlj^  by  a  decree 
uttered  in  more  solemn  forms,  or  by  the  determina- 
tion of  something  greater  than  a  mere  majority. 
The  court,  therefore,  in  holding  a  statute  uncon- 
stitutional, is  in  effect  deciding  that  it  is  not  within 
the  range  of  acts  to  which  the  whole  people  have 
given  their  consent;  so  that  while  the  opinion  in 
favor  of  the  act  may  be  an  opinion  of  the  majority 
of  the  voters,  it  is  not  a  public  opinion  of  the  com- 
munity, because  it  is  not  one  where  the  people  as 
a  whole  are  united  in  a  conviction  that  the  views 
of  the  majority,  at  least  as  expressed  through  the 
ordinary  channels,  ought  to  prevail. 

5.   Consent  and  Force 

We  have  seen  that  in  some  countries  the  popula- 
tion has  contained,  and  for  that  matter  still  contains, 
distinct  elements  which  are  sharply  at  odds  upon 
the  vital  political  questions  of  the  day.  In  such  a 
case  the  discordant  forces  may  be  violent  enough  to 
preclude  a  general  consent  that  the  opinion  of  the 
majority  ought  to  prevail;  but  this  is  not  always 
true.  If  they  are  not,  the  assumption  which  lies 
at  the  foundation  of  popular  government  remains 
unimpaired.  If  they  are,  the  forms  of  democracy 
may  still  be  in  operation,  although  their  meaning 
is  essentially  altered.  It  may  be  worth  while  to 
dwell  on  this  contrast  a  moment  because  it  makes 


§  5]  Consent  and  Force  11 

clear  the  difference  between  true  public  opinion  and 
the  opinion  of  a  majority. 

Leaving  out  of  account  those  doctrines  whereby 
political  authority  is  traced  to  a  direct  supernatural 
origin,  government  among  men  is  commonly  based 
in  theory  either  on  consent  or  on  force,  and  in  fact 
each  of  these  factors  plays  a  larger  or  smaller  part 
in  every  civilized  country.  So  far  as  the  prepon- 
derating opinion  is  one  which  the  minority  does  not 
share,  but  which  it  feels  ought,  as  the  opinion  of 
the  majority,  to  be  carried  out,  the  government  is 
conducted  by  a  true  public  opinion  or  by  consent. 
So  far  as  the  preponderating  opinion  is  one  the 
execution  of  which  the  minority  would  resist  by 
force  if  it  could  do  so  successfully,  the  government 
is  based  upon  force.  At  times  it  may  be  necessary 
to  give  effect  to  an  opinion  of  the  majority  against 
the  violent  resistance,  or  through  the  reluctant 
submission,  of  the  minority.  A  violent  resistance 
may  involve  the  suppression  of  an  armed  insurrec- 
tion or  civil  war.  But  even  when  there  is  no  resort 
to  actual  force  it  remains  true  that  in  any  case  where 
the  minority  does  not  concede  the  right  of  the 
majority  to  decide,  submission  is  yielded  only  to 
obviously  superior  strength;  and  obedience  is  the 
result  of  compulsion,  not  of  public  opinion.  The 
power  to  carry  out  its  will  under  such  conditions 
must  to  some  extent  be  inherent  in  every  govern- 
ment. Habitual  criminals  are  held  in  check  by 
force  everywhere.  But  in  many  nations  at  the  pres- 
ent day  there  are  great  masses  of  well-intentioned 
citizens  who  do  not  admit  the  right  of  the  majority 


12  The  Nature  of  Public  Opinion  [§  6 

to  rule.  Those  persons  and  the  political  parties  in 
which  they  group  themselves  are  termed  irrecon- 
cilable, and  when  we  speak  of  public  opinion  in  that 
country  we  cannot  include  them.  So  far  as  they 
are  concerned  there  can  be  no  general  or  public 
opinion. 

Let  us  be  perfectly  clear  upon  this  point.  The 
presence  of  irreconcilables  does  not  mean  that  the 
government  is  illegitimate,  or  that  it  is  not  justified 
in  enforcing  its  will  upon  the  reluctant  minority. 
That  will  depend  upon  other  considerations.  The 
use  of  force  may  be  unavoidable  if  any  settled  gov- 
ernment is  to  be  upheld,  if  civic  order  is  to  be  main- 
tained. But  it  does  mean  that  the  fundamental 
assumption  of  popular  government,  the  control  of 
political  affairs  by  an  opinion  which  is  truly  public, 
is  set  aside.  Florence  may,  or  may  not,  have 
been  justified  in  disfranchising  her  noble  families, 
but  Freeman  was  certainly  right  in  his  opinion  that 
by  so  doing  she  lost  her  right  to  be  called  a  democ- 
racy,^ —  that  is,  a  government  by  all  the  people,  — 
and  it  makes  little  difference  for  this  purpose  whether 
a  part  of  the  body  politic  is  formally  excluded  from 
any  share  in  public  affairs  or  overawed  by  force  into 
submission. 

6.   Numbers  and  Intensity  in  Opinion 

One  more  remark  must  be  made  before  quitting 
the  subject  of  the  relation  of  public  opinion  to  the 
opinion  of  the  majority.  The  late  Gabriel  Tarde, 
with    his    habitual    keen    insight,    insisted    on    the 

^  Growth  of  the  English  Constitution,  chap,  i,  note  \\. 


§  6]       Numbers  and  Intensity  in  Opinion       13 

importance  of  the  intensity  of  belief  as  a  factor  in 
the  spread  of  opinions. ^  There  is  a  common  impres- 
sion that  pubHc  opinion  depends  upon  and  is  meas- 
ured by  the  mere  number  of  persons  to  be  found 
on  each  side  of  a  question;  but  this  is  far  from 
accurate.  If  forty-nine  per  cent,  of  a  community 
feel  very  strongly  on  one  side,  and  fifty-one  per 
cent,  are  lukewarmly  on  the  other,  the  former  opinion 
has  the  greater  public  force  behind  it  and  is  certain 
to  prevail  ultimately  if  it  does  not  at  once.  The 
ideas  of  people  who  possess  the  greatest  knowledge 
of  a  subject  are  also  of  more  weight  than  those  of 
an  equal  number  of  ignorant  persons.  If,  for  ex- 
ample, all  the  physicians,  backed  by  all  other  edu- 
cated men,  are  confident  that  an  impure  water 
supply  causes  typhoid  fever,  while  the  rest  of  the 
people  are  mildly  incredulous,  it  can  hardly  be  said 
that  public  opinion  is  opposed  to  that  notion.  One 
man  who  holds  his  belief  tenaciously  counts  for  as 
much  as  several  men  who  hold  theirs  weakly,  because 
he  is  more  aggressive,  and  thereby  compels  and 
overawes  others  into  apparent  agreement  with  him, 
or  at  least  into  silence  and  inaction.  This  is,  per- 
haps, especially  true  of  moral  questions.  It  is  not 
improbable  that  a  large  part  of  the  accepted  moral 
code  is  maintained  by  the  earnestness  of  a  minority, 
while  more  than  half  of  the  community  is  indifferent 
or  unconvinced.  In  short,  public  opinion  is  not 
strictly  the  opinion  of  the  numerical  majority,  and 
no  form  of  its  expression  measures  the  mere  majority, 
for    individual    views    are    always    to    some    extent 

^  Les  Transformations  du  Pouvoir,  pp.  42  et  seq. 


14  The  Nature  of  Public  Opinion  [§  7 

weighed  as  well  as  counted.  "Without  attempting 
to  consider  how  the  weight  attaching  to  intensity 
and  intelligence  can  be  accurately  gauged,  it  is 
enough  for  our  purpose  to  point  out  that  when  we 
speak  of  the  opinion  of  a  majority  we  mean,  not  the 
numerical,  but  the  effective  majority. 

No  doubt  differences  in  the  intensity  of  belief  ex- 
plain some  sudden  transformations  in  politics  and  in 
ethical  standards,  many  people  holding  their  views 
with  so  little  conviction  that  they  are  ready  to  fol- 
low in  the  wake  of  any  strong  leader  in  thought 
or  action.  On  the  other  hand  they  explain  in  part 
also  cases  where  a  law  is  enacted  readily  but  enforced 
with  difficulty;  for  the  law  may  be  carried  through 
by  a  comparatively  small  bodj^  of  very  earnest  men, 
who  produce  a  disproportionate  effect  by  the  heat 
of  their  conviction ;  while  the  bulk  of  the  people  are 
apathetic  and  unwilling  to  support  the  effort  required 
to  overcome  a  steady  passive  resistance  to  the 
enforcement  of  the  law. 

The  problem  of  intensity  of  belief  is  connected, 
moreover,  with  the  fact  that  different  ways  of  ascer- 
taining the  popular  will  may  give  different  results, 
in  accordance  with  the  larger  or  smaller  proportion 
of  the  indifferent  who  are  gathered  in  to  vote.  But 
this  is  a  matter  that  belongs  properly  to  a  later  dis- 
cussion of  the  methods  of  expressing  public  opinion. 
We  are  dealing  here  only  with  its  essential  nature. 

7.   Conclusion 
To  sum  up  what  has  been  said  in  this  chapter: 
public  opinion  to  be  worthy  of  the  name,  to  be  the 


§  7]  Conclusion  15 

proper  motive  force  in  a  democracy,  must  be  really 
public;  and  popular  government  is  based  upon  the 
assumption  of  a  public  opinion  of  that  kind.  In 
order  that  it  may  be  public  a  majority  is  not  enough, 
and  unanimity  is  not  required,  but  the  opinion  must 
be  such  that  while  the  minority  may  not  share  it, 
they  feel  bound,  by  conviction  not  by  fear,  to  accept 
it;  and  if  democracy  is  complete  the  submission 
of  the  minority  must  be  given  ungrudgingly.  An 
essential  difference  between  government  by  public 
opinion  as  thus  defined  and  by  the  bare  will  of  a 
selfish  majority  has  been  well  expressed  by  Presi- 
dent Hadley.  After  saying  that  laws  imposed  by 
a  majority  on  a  reluctant  minority  are  commonly 
inoperative,  he  adds,  "It  cannot  be  too  often  repeated 
that  those  opinions  which  a  man  is  prepared  to  main- 
tain at  another's  cost,  but  not  at  his  own,  count 
for  little  in  forming  the  general  sentiment  of  a 
community,  or  in  producing  any  effective  public 
movement."  ^ 

^  The  Education  of  the  American  Citizen,   chap,  iii,  p.  27. 


CHAPTER   II 

PUBLIC  OPINION   MUST  BE  OPINION 

After  considering  what  is  meant  by  "public,"  we 
must  turn  to  what  is  meant  by  "opinion." 

8.    Opinions  are  Only  in  Part  Rational 

It  has  become  almost  a  commonplace  that  the 
elder  breed  of  political  and  economic  philosophers 
erred  in  regarding  man  as  a  purely  rational  being, 
guided  by  selfish  aims;  whereas  he  is  really,  in  the 
main,  a  creature  of  suggestion,  whose  strongest 
impulses  are  often  generous.  Later  experience  and 
modern  psychology  have  started  a  new  train  of 
thought,  have  given  us  a  different  standpoint  from 
which  to  study  mankind.  We  are  constantly  told 
today  how  small  a  part  of  our  actions  are  the 
result  of  our  own  reasoning,  how  small  a  proportion 
of  opinion  is  personal,  how  much  of  it  is  taken  from 
others  in  whole  or  in  part  ready-made. 

The  history  of  religious  bodies  shows  that  with 
the  vast  majority  of  men  creeds  are  inherited;  or, 
to  speak  more  strictly,  accepted  on  the  suggestion 
and  authority  of  parents  and  teachers.  It  is  incredi- 
ble that  if  everyone  really  thought  out  his  beliefs 
for  himself  religious  lines  would  remain  from  genera- 
tion to  generation  so  little  changed  as  they  have, 
for  example,  among  the  Catholics  and  Protestants 
in  Switzerland.     That  such  results  are  not  due  to 

16 


§  8]     Opinions  arc  Only  in  Part  Rational       1 7 

a  transmission  of  mental  traits  in  the  blood,  pre- 
disposing the  child  to  the  doctrines  wrought  out 
by  his  ancestors,  would  seem  to  be  clear  from  the 
case  of  the  Turkish  Janissaries;  for  this  great  fight- 
ing force  of  the  Ottoman  Sultans  was  composed 
of  Christian  children  taken  from  their  homes  in  in- 
fancy and  brought  up  in  the  Mohammedan  faith. 
Although  they  revolted  at  times  in  consequence  of 
grievances,  they  never  showed  any  tendency  to 
revert  to  the  religion  of  their  parents.  In  fact  it 
would  be  safe  to  assert  as  a  general  rule  that  the 
members  of  every  church  have  accepted  its  dogmas 
because  they  belonged  to  it,  quite  as  much  as  they 
have  clung  to  the  church  on  account  of  a  belief  in 
its  creed.  Nor  is  this  less  true  of  other  spheres  of 
thought.  It  is  manifestly  the  case  in  politics,  w^here 
party  affiliations  have  no  less  influence  in  fixing  the 
principles  of  men,  than  the  principles  have  in  deter- 
mining the  membership  of  the  parties. 

Opinions  may,  of  course,  be  adopted  by  conscious 
submission  to  the  authority  of  someone  who  is  better 
informed;  and  Sir  George  Cornewall  Lewis  points 
out  that  in  such  a  case  "The  choice  of  a  guide  is  as 
much  a  matter  of  free  determination,  as  the  adoption 
of  an  opinion  on  argumentative  grounds."^  But  he 
does  not  appear  to  have  perceived  to  how  small  an 
extent  the  selection  of  a  guide  is  in  fact  deliberate  or 
even  conscious.  In  most  of  the  affairs  of  life  we  are 
constantly  acting  upon  suggestions  without  being 
aware  of  their  origin,  or  indeed  of  the  fact  that  we 
did  not  frame  our  conclusions  unaided. 

'  Influence  of  Authority  in  Matters  of  Opinion,  p.  63. 
2 


18  The  Xature  of  Public  Opinion  [§  9 

9.    Opinions  Adopted  from  Others  may  be  Real  Opinions 

A  conviction  founded  on  a  conscious  deference 
to  authority  or  a  wholly  unconscious  process  of 
suggestion,  even  if  unworthy  of  respect  on  its  merits 
and  valueless  as  evidence  of  the  truth  of  the  prop- 
osition accepted,  yet,  if  prevalent,  may  be  a  vital 
factor  not  to  be  neglected  in  politics  and  legislation. 
A  mere  blind  prejudice  of  this  nature  when  wide- 
spread must  be  heeded,  but  it  does  not  belong  to 
the  class  of  opinions  which  popular  government  is 
designed  to  promote.  We  must,  however,  distin- 
guish between  different  kinds  of  convictions  formed 
apparently  by  the  same  process.  A  belief,  although 
adopted  on  suggestion  or  authority  without  mature 
consideration,  may  nevertheless  be  a  real  opinion 
and  not  a  mere  prejudice  or  meaningless  impression; 
for  the  line  between  what  is  opinion  and  what  is  not 
is  by  no  means  the  same  as  the  line  between  what 
is  personally  thought  out,  or  consciously  rational, 
and  what  comes  in  other  ways.  The  bulk  of  every 
community  accepts  without  adequate  reasoning  all 
its  fundamental  political  principles,  such  as  a  belief 
in  monarchy  or  in  a  federal  system  of  government, 
in  universal  suffrage,  in  trial  by  jury,  and  in  many 
other  things  that  the  people  of  a  country  habitually 
assume  as  axioms.  In  fact  the  reasons  popularly 
given  for  the  maintenance  of  these  institutions  are 
sometimes  almost  ludicrously  insufficient  to  justify 
their  existence.  Occasionally  they  are  quite  incon- 
sistent with  actual  facts  or  wholly  foreign  to  the 
real  benefits  received.     It  is  much  easier  to  perceive 


§  10]  When  Part  of  the  Believer's  Philosophy  19 

fallacies  of  that  kind  in  another  country,  or  a  by- 
gone age,  than  among  ourselves.  We  smile  at  the 
divine  right  of  kings  as  an  argument  for  the  British 
monarchy,  while  we  repeat  complacently  equally 
futile  traditions  of  our  own.  But  all  this  does  not 
mean  that  the  things  themselves  are  not  excellent, 
or  even  indispensable  for  the  objects  they  really 
serve.  Bagehot,  indeed,  gave  a  great  impulse  to 
clear  thinking  when  he  pointed  out  that  the  merits 
popularly  ascribed  to  the  English  Constitution  were 
for  the  most  part  imaginary,  and  yet  extolled  those 
very  institutions  without  measure  for  quite  different 
reasons. 

10.   If  an  Integral  Part  of  the  Believer's  Philosophy 

In  the  category  of  opinions  not  wholly  rational 
must  be  classed  the  faith  of  most  persons  in  the 
dogmas  of  the  religious  bodies  to  which  they  belong. 
In  such  cases  one  might  suggest  that  a  man  has 
in  reality  an  opinion  about  his  church,  and  not 
about  the  particular  tenets  which  he  accepts  on 
its  authority.  But  this  is  by  no  means  always  true, 
because  in  fact  he  accepts  the  doctrines  and  the 
church  itself  for  much  the  same  reason.  Both  of 
them  form  part  of  what  the  Germans  call  his  Welt- 
anshauung,  his  general  point  of  view.  They  fit 
into  his  conception  of  the  universal  fitness  of  things, 
and  hence  they  are  woven  into  the  very  texture 
of  his  mind  and  are  not  easily  changed.  If  held 
universally  in  a  community,  or  nearly  so,  they  are 
an  integral  part  of  the  civilization  of  the  people. 
If  held  only  by  a  considerable  portion  of  the  people. 


20  The  Nature  of  Public  Opinion        [§  10 

they  are  an  integral  part  of  the  civilization  of  that 
portion. 

Experimental  psychologists  tell  us  that,  as  a  rule, 
a  man  cannot  by  hypnotic  suggestion  be  made  to 
adopt  an  idea  inconsistent  with  his  ovm  character 
—  a  truth  of  general  application  to  suggestions 
of  other  kinds,  whether  presented  to  individuals 
or  communities.  The  Puritan  of  the  seventeenth 
century  would  not  have  believed  in  predestination 
had  it  not  been  consonant  with  the  puritanical  tone 
of  thought;  and  the  same  principle  may  be  con- 
stantly traced  in  the  evolution  of  political  systems, 
for  all  law  and  custom  embody  in  the  main  inherited 
opinions  on  the  fitness  of  things.  The  most  inter- 
esting aspect,  indeed,  of  political  science  consists 
in  working  out  the  actual  relation  to  one  another 
of  the  various  institutions  of  a  nation;  in  discover- 
ing how  far  they  make  up  a  harmonious  system,  and 
how  the  incongruous  elements  are  gradually  elimi- 
nated or  modified  to  suit  their  environment.  This 
organic  need  of  harmony  makes  it  impossible  to 
predict  that  an  institution  that  has  worked  well  in 
one  country  will  produce  the  same  results  in  another; 
and,  on  the  other  hand,  it  makes  an  innovation  often 
hazardous,  because,  like  the  introduction  of  the  mon- 
goose into  Jamaica,  it  may  modify  existing  conditions 
to  an  extent  altogether  unforeseen. 

Now  a  community  may  have  a  keen  sense  of  the 
incongruity  between  some  policy  or  practice  and 
the  rest  of  its  civilization  without  having  a  rational 
understanding  of  either.  The  people  of  the  northern 
states  may  have  been  incapable  of   weighing  fairly 


§  10]  When  Part  of  the  Behever's  Philosophy  21 

the  arguments  of  the  Greek  philosophers  in  favor  of 
leaving  manual  labor  to  slaves,  and  yet  they  came 
to  perceive  clearly  that  slavery  anywhere  in  the 
United  States  could  not  be  permanently  in  harmony 
with  the  system  of  free  labor  in  their  own  part  of 
the  country.  Again  the  American  people  did  not 
attempt  to  study  rationally  the  ultimate  effects  of 
polygamy  and  monogamy,  but  they  were  perfectly 
well  aware  that  polygamy  legally  practised  in  Utah 
would  be  inconsistent  with  the  principles  on  which 
their  whole  social  structure  was  founded. 

The  real  relation  of  ideas  to  each  other  is  by  no 
means  always  perceived  at  first  sight,  for  the  human 
mind  is  singularly  capable  of  entertaining  for  a 
time  contradictory  principles  without  knowing  it; 
but  when  an  old  conviction  is  retained,  or  a  new 
one  is  accepted,  on  account  of  its  consonance  with 
a  code  of  beliefs  already  in  the  mind,  although 
without  any  sufficient  process  of  reasoning  or 
knowledge  of  the  facts,  it  may  be  regarded  as  an 
opinion  in  a  very  different  sense  from  an  impression 
derived  from  authority  or  suggestion  apart  from 
any  such  connection  with  existing  ideas.  The  first 
report  by  a  navigator  that  he  had  seen  the  south 
polar  ice  cap  might  well  give  rise  to  an  opinion  that 
the  pole  was  covered  with  ice,  because  that  agreed 
with  what  was  known  about  the  distribution  of  heat 
over  the  earth;  while  a  tale  by  the  same  navigator 
about  meeting  a  sea-serpent  might  produce  among 
his  hearers  nothing  worthy  of  being  called  an  opinion, 
because  they  know  too  little  about  marine  life  to 
estimate  the  probability  of  the  fact.     In  one  case 


22  The  Nature  of  Public  Opinion        [§  11 

the  report  was  in  harmony  with  other  ideas  already 
in  the  mind;  in  the  other  it  bore  no  apparent  rela- 
tion to  any  such  ideas. 


11.   Otherwise  an  Opinion  must  Involve  a  Personal 
Judgment  of  Facts 

A  conviction,  therefore,  formed  because  it  is  in 
accord  with  a  code  of  beliefs  already  in  the  mind 
is  properly  classed  as  an  opinion;  but  many  of 
the  problems  that  arise  in  politics,  as  in  the  other 
affairs  of  life,  cannot  be  solved  in  this  way.  They  do 
not  present  a  question  of  harmony  with  accepted 
principles,  but  the  application  of  an  accepted 
principle  to  a  particular  case,  or  the  means  to  be 
adopted  in  attaining  an  end  universally  desired; 
and  these  things  usually  require  for  their  determina- 
tion a  considerable  knowledge  of  the  subject  matter. 
In  short  the  question  turns  not  on  the  abstract 
fitness  of  things,  but  mainly  on  the  verification  of 
facts,  and  in  doubtful  cases  on  ascertaining  facts 
neither  on  the  one  hand  self-evident  nor  on  the  other 
improbable.  Take,  for  example,  the  grant  of  a 
street  railroad  franchise  to  a  private  corporation, 
and  let  us  assume  for  the  purpose  of  the  argument 
that  it  is  wise  to  grant  the  franchise  on  securing  to 
the  public  a  proper  return  for  the  concession,  but 
not  otherwise.  The  question  presented  is  whether 
a  specific  bill  does  or  does  not  secure  such  a  return. 
To  take  another  illustration:  it  is  generally  ad- 
mitted that  children  should  be  educated  for  their 
duties  in  life  at  the  public  expense.  To  what  extent 
are  the  studies  leading  to  a  general   education  and 


§  11]    Involves  Personal  Judgment  of  Facts      23 

to  what  extent  are  manual  and  industrial  training 
best  adapted  to  that  end? 

On  problems  of  this  kind  an  opinion  worthy  of  the 
name  cannot  be  formed  without  both  a  process  of 
reasoning  and,  what  is  far  more  difficult,  the  com- 
mand of  a  number  of  facts ;  although  not  necessarily 
all  the  facts  in  the  case.  Let  us  suppose  that  to 
decide  a  question  it  is  necessary  to  ascertain  facts 
A,  B,  and  C;  that  I  know  A  of  my  own  knowledge, 
determine  B  to  my  own  satisfaction  by  weighing 
contradictory  evidence,  and  accept  C  (which  is  a 
technical  matter  requiring  special  knowledge)  on 
the  authority  of  an  expert.  A  concrete  instance 
will  make  the  problem  more  clear,  and  for  that 
purpose  we  may  consider  the  case  of  the  street 
railroad  franchise  just  mentioned.  The  question 
presented  is  that  of  securing  a  proper  return  to  the 
pubHc,  and  this,  we  may  suppose,  involves  the 
further  question  of  a  reasonable  profit  to  the  com- 
pany. The  reasonable  profit  may  in  turn  depend 
upon  what  is  a  fair  rate  of  interest  on  the  capital 
outlay,  upon  the  probable  net  income  from  operating 
the  road,  and  upon  the  deterioration  of  the  plant. 
Being  a  man  of  affairs  I  know  what  is  a  fair  interest 
on  that  kind  of  investment.  The  probable  net  in- 
come I  calculate  by  comparing  the  reports  of  street 
railroads  in  other  cities  and  the  estimates  of  various 
experts.  For  the  deterioration  I  rely  wholly  on  the 
statement  of  a  civil  engineer.  Clearly  it  cannot  be 
said  in  such  a  case  that  I  have  no  personal  opinion 
because  I  have  taken  a  part  of  the  data  on  authority. 

If,  on  the  other  hand,  I  take  all  three  facts  on 


24  The  Nature  of  Public  Opinion        [§  12 

authority  or  suggestion  alone;  still  more  if  I  simply 
accept  the  conclusion  that  the  franchise  bill  as  a 
whole  is  good  on  such  a  ground;  or  if  I  vote  for  it 
solely  because  my  party  is  in  favor  of  it,  or  because 
the  promoter  has  a  clear  voice  and  engaging  manners, 
or  because  he  was  once  kind  to  my  mother;  obviously 
I  have  no  real  opinion  of  my  own  on  the  merits  of 
the  bill.  I  may  have  an  opinion  on  the  trustworthi- 
ness of  the  man  on  whom  I  rely,  or  of  the  party  that 
I  follow,  but  not  on  the  subject  itself.  Now  public 
opinion  on  a  question  means  an  opinion  on  the 
question  itself;  and  hence  in  the  case  supposed,  if 
the  bulk  of  the  community  are  in  the  same  state  of 
mind  that  I  am,  there  can  be  no  real  public  opinion 
about  the  franchise. 

In  order,  therefore,  that  there  may  be  a  real  public 
opinion  on  any  subject,  not  involving  a  simple  ques- 
tion of  harmony  or  contradiction  with  settled  con- 
victions, the  bulk  of  the  people  must  be  in  a  position 
to  determine  of  their  own  knowledge,  or  by  weighing 
evidence,  a  substantial  part  of  the  facts  required 
for  a  rational  decision. 

12.   Importance  of  Distinguishing  the  Real  Subject  of 
Public  Opinion 

It  is  all  the  more  important  to  distinguish  clearly 
between  an  opinion  on  the  question  itself  and  on 
something  else,  because  the  mass  of  the  people  do 
not  so  distinguish,  and  may  not  hesitate  to  vote 
freely  on  a  question  without  having  an  opinion  about 
it.  Nor  is  it  easy  in  practice  to  make  the  distinction 
without  great  care  in  selecting  both  the  questions 


§  12]        Real  Subject  of  Public  Opinion  25 

to  be  submitted  to  a  vote  and  the  form  in  which 
they  are  submitted.  This  is  obviously  true  when 
we  try  to  deduce  from  an  election  of  public  officers 
the  popular  opinion  upon  the  various  matters  dis- 
cussed during  the  campaign;  for  it  is  often  impossible 
to  ascertain  on  which  of  the  issues  involved  the 
people  have  rendered  their  verdict.  A  general 
election  for  Parliament,  or  for  President  and  Con- 
gress, may  be  mainly  an  expression  of  opinion  upon 
some  salient  measure,  or  an  expression  of  greater 
confidence  in  one  man  or  group  of  men  than  in 
another,  or  it  may  indicate  merely  an  habitual  sub- 
mission to  the  authority  of  a  party,  a  church,  or 
a  labor  union.  We  shall  have  occasion  to  observe 
hereafter,  in  spite  of  frequent  assertions  to  the  con- 
trary, that  this  may  be  true  also  of  a  popular  vote 
on  particular  measures,  by  means  of  the  referen- 
dum and  initiative.  The  motives  for  a  ballot  of 
any  kind  often  differ  with  different  people  who  vote 
the  same  way,  and  are  not  seldom  so  mixed  in  the 
mind  of  a  single  individual  that  he  would  find  it 
hard  to  disentangle  them  if  he  tried,  and  his  own 
analysis  would  often  be  mistaken. 

Now  it  does  not  follow  that,  because  people  have 
no  true  opinion  on  a  question,  they  have  no  opinion 
on  the  method  by  which  it  ought  to  be  decided. 
They  may  be  incapable,  and  recognize  that  they  are 
incapable,  of  forming  an  opinion  about  an  intricate 
point  of  law,  or  about  the  guilt  of  a  man  accused 
of  crime  when  the  evidence  is  conflicting;  and  yet 
they  may  have  a  very  definite  opinion  that  the 
matter  shall  be  decided  by  a  court  of  law,  and  that 


26  The  Nature  of  Public  Opinion        [§  13 

its  decision  shall  be  enforced.  The  public  may 
have  no  opinion  about  dealing  with  an  epidemic, 
and  yet  it  may  have  a  very  strong  opinion  that 
it  ought  to  be  combated  by  physicians  who  have 
proved  their  competence.  This  suggests  a  point 
of  practical  importance,  for  it  is  obviously  wise,  so 
far  as  possible,  to  submit  to  the  judgment  of  the 
people  the  questions  on  which  they  have,  or  may 
have,  opinions,  and  not  those  on  which  they  have 

none. 

13.   Opinion  and  Desire 

It  may  be  observed  that  nothing  has  been  said 
in  this  chapter  about  popular  desire  as  contrasted 
with  public  opinion.  Xor  for  our  purpose  is  it 
needful  to  dwell  on  the  distinction.  Both  are  sub- 
ject to  the  same  condition,  that  the  desire,  like  the 
opinion,  must  be  public,  —  that  is,  one  which  the 
minority  feels  bound  to  accept.  This  is  more  likely 
to  be  true  in  the  case  of  opinion  than  of  desire, 
because  the  former  is  more  likely  to  comprise  the 
welfare  of  the  whole  community  in  its  scope;  but  if 
the  desire  fulfils  the  required  conditions  it  can,  for 
political  purposes,  scarcely  be  distinguished  from 
opinion.  It  is  not  of  necessity  less  rational,  less 
in  harmony  with  settled  convictions,  or  framed  with- 
out a  comprehension  of  hard  fact.  The  two  are, 
indeed,  always  commingled.  Nevertheless  there  is 
truth  in  Tarde's  remark  that  power  founded  on 
popular  desire  is  base,  while  power  founded  on 
popular  confidence  or  opinion  is  noble. ^    Nor  does  a 

1  Les'  Transformations  du  Pouvoir,  p.  44.  He  declares  that 
popular  election  is  defective  because  it  expresses  desire  rather  than 


§  13]  Opinion  and  Desire  27 

desire  become  noble  because  shared  by  many  people. 
In  saying  this  the  word  desire  is  used  to  mean  a  sel- 
fish impulse;  but  desires,  and  especially  the  strongest 
ones,  are  not  always  selfish.  Man  at  his  best  is 
a  moral  being,  and  it  is  only  as  a  moral  being  that 
he  is  fit  for  self-government.  The  great  statesman, 
like  the  great  moral  leader,  is  one  who  appeals  to 
the  higher  emotions,  to  principle,  to  self-restraint, 
not  to  selfishness  and  appetite. 

opinion,  and  that  the  strongest  governments  in  the  world  have  possessed 
some  sacred  source  of  authority  beside  election  (p.  45).  He  says  also 
(p.  167)  that  a  free  state  is  one  where  the  desires  and  opinions  of  the  rulers 
are  in  harmony. 


CHAPTER  III 

CONDITIONS  ESSENTIAL  FOR  PUBLIC  OPINION 

Having  analyzed  the  significance  of  the  words 
"public"  and  "opinion"  we  have  a  base  line  whence 
we  can  survey  the  conditions  under  which  public 
opinion  can  exist  and  the  matters  to  which  it  can 
apply.  We  have  seen  that  an  opinion  can  be  public 
only  when  those  who  do  not  share  it  feel  constrained 
by  a  sense  of  obligation,  and  not  merely  by  fear  of 
superior  force,  to  accept  it;  but  this  has  by  no  means 
been  the  case  in  all  countries  at  all  times. 

14.   Doctrine  of  the  Harmony  of  Interests 

Rousseau  conceived  an  ideal  commonwealth  where 
all  men  had  in  reality  a  common  will,  differing  only 
in  their  opinions  about  what  that  will  might  be;  and 
his  idea  has  assumed  various  forms,  some  of  them 
not  very  obvious  on  the  surface.  It  is  involved  in 
the  doctrine  of  the  universal  harmony  of  human 
interests  which  underlay  much  of  the  speculation 
of  the  earlier  political  economists.  With  character- 
istic lucidity  that  doctrine  was  expressly  stated  by 
the  French  physiocrats  of  the  eighteenth  century 
and  by  some  of  their  compatriots  in  the  nineteenth; 
while  it  was  virtually  assumed  by  the  English 
classical  school  of  economists  and  provided  a  half- 
concealed  foundation  for  their  i)rinciplcs. 

Now,  if  the  interests  of  all  men  are  ultimately 

28 


§  U]      Doctrine  of  Harmony  of  Interests      29 

in  accord,  any  divergence  of  views  cannot  be  due 
to  a  conflict  of  interests,  because  no  such  conflicts 
can  in  fact  exist.  The  divergence  must  arise  entirely 
from  a  difference  of  opinion  about  what  the  common 
interests  of  all  men  are,  or  how  those  interests  can 
best  be  promoted.  As  in  Rousseau's  ideal  state, 
everyone  desires  the  same  end,  whether  we  call  it 
the  common  will  or  the  common  welfare,  and  men 
differ  only  about  the  means  of  attaining  that  end. 
With  such  a  faith  it  is  not  surprising  that  the  ad- 
herents of  this  school  of  political  economy  should 
have  been  optimists. 

Some  of  the  earlier  maxims  of  democracy  rested 
upon  the  same  premise  and  produced  in  like  man- 
ner an  optimistic  spirit.  The  maxim,  for  example, 
that  the  people  as  a  whole  cannot  want  to  injure 
itself,  and  hence  that  public  opinion  when  enlightened 
must  always  be  right,  is  all  very  well  if  the  people 
have  an  essential  solidarity  based  upon  the  fact  that 
the  true  interests  of  all  citizens  are  identical.  But 
if  not,  the  foundation  of  the  maxim  crumbles  away. 
The  majority  may  desire  to  injure  the  minority 
wrongfully;  or  the  people  now  living  may,  in  pur- 
suit of  their  own  objects,  disregard  the  welfare  of 
posterity. 

If  there  were  not  some  harmony  of  interests 
among  men  they  would  never  have  become  civi- 
lized or  lived  in  communities.  Man  is  a  gregarious 
animal,  and  all  creatures  that  herd  together  in  con- 
siderable groups  do  so  because  their  common  in- 
terests exceed  in  importance  their  conflicting  ones. 
Most   of    the   carnivora   dwell    alone   or   in   small 


30  The  Nature  of  Public  Opinion        [§  14 

families,  for  the  simple  reason  that  their  interests, 
especially  in  the  matter  of  food,  are  antagonistic; 
and  if  this  had  been  true  of  man  he  would  have 
lived  forever  in  the  same  way.  Nevertheless  the 
early  economists  and  democrats  certainly  went  too 
far  in  assuming  the  absolute  truth  of  their  doctrine, 
for  the  faith  in  the  universal  harmony  of  interests 
has  not  been  verified  by  experience;  or  at  least 
has  not  proved  to  be  wholly  in  accord  with  the 
controlling  impulses  of  mankind  as  we  see  them  at 
work  in  the  stress  of  political  life  under  an  ex- 
tended suffrage.  In  fact  the  doctrine  itself  has 
suffered  the  fate  of  outworn  theories.  After  dying 
a  natural  death  it  has  been  placed  in  the  pillory 
that  men  might  show  how  skilfully  they  could  have 
killed  it  if  it  were  not  already  dead.  Even  the 
strongest  advocates  of  popular  government  have 
discovered,  or  believe  they  have  discovered,  that 
the  interests  of  all  members  of  the  community  are 
not  identical;  and  although  in  many  cases  men 
seek  to  cloak  selfish  aims  by  arguments  designed  to 
prove  that  their  own  objects  will  promote  general 
prosperity,  this  tribute  to  virtue  is  not  always  paid. 
Labor  parties,  for  example,  have  arisen  in  some  coun- 
tries, wielding  at  times  great  power,  and  advocating 
frankly  the  interests  of  working  men  alone. ^ 

1  After  declaring  that  the  test  of  morality  in  politics  is  whether  a 
course  of  action  tends  to  enlarge  the  domain  of  sympathy  and  soli- 
darity, Tarde  asserts  that  every  politician  who  sets  before  his  eyes  the 
exclusive  triumph  of  one  class  or  one  caste,  even  if  it  be  the  class  or  the 
caste  that  is  most  numerous  and  most  disinherited,  is  retrograde  from 
the  start.  A  socialist  party,  he  says,  may  be  in  the  great  current  of 
progress,  but  a  working-man's  party  cannot.  (Z/CS  Transformations  du 
Pouvoir,  pp.  257,  258.) 


§  15]  Growth  of  Race  Feeling  31 

16.   Growth  of  Race  Feeling 

Nor  are  the  conflicts  of  interests  that  are  manifest 
today  due  entirely  to  personal  or  material  aims. 
One  of  the  most  striking  facts  of  the  last  half  century 
has  been  the  growing  intensity  of  race  feeling,  often 
in  cases  where  the  worldly  prospects  of  the  individual 
would  be  promoted  by  abandoning  the  language 
and  traditions  of  his  ancestors.  The  principle 
of  the  harmony  of  interests,  being  primarily  an 
economic  doctrine  dealing  with  material  prosperity, 
left  out  of  the  reckoning  other  motives  of  unmeas- 
ured power;  and  in  the  recent  struggles  of  races  for 
existence  or  supremacy  the  sentiments  of  comrade- 
ship, loyalty,  and  pride  of  race  have  often  proved 
stronger  than  the  greed  of  gain. 

Curiously  enough  this  phenomenon  is  by  no 
means  confined  to  races  of  men  very  far  apart  in 
natural  qualities,  to  the  great  branches  of  the  human 
family  found  in  the  different  continents.  It  is  acute 
among  people  of  European  stock  who  in  the  past 
have  dwelt  peacefully  together,  and  have  even 
fought  shoulder  to  shoulder  against  a  common  foe. 
Sometimes  it  is  reinforced  by  religious  cleavage, 
sometimes  not;  but  wherever  it  is  bitter  it  mars 
the  smooth  working  of  popular  institutions.  Occa- 
sionally it  takes  the  form  of  a  genial  sentimentality 
of  no  great  political  significance,  like  that  which 
would  have  caused  the  national  emblem  of  Wales 
to  be  inserted  in  one  of  the  quarters  of  the  royal 
standard.  In  other  places,  notably  in  Austria,  it 
has  become  so  violent  as  to  dislocate  at  times  the 


3^2  The  Nature  of  Public  Opinion        [§  16 

machinery  of  parhamentary  government  altogether, 
causing  scenes  of  disorder  more  befitting  the  pas- 
sions of  a  mob  than  the  counsels  of  a  legislative  as- 
sembly, and  threatening  even  the  stability  of  the 
state.  The  different  races  in  such  a  case  are  striv- 
ing for  objects  that  cannot  be  reconciled.  So  long 
as  one  of  them  aims  at  supremacy  and  another  at 
equality  no  compromise  acceptable  to  both  is  pos- 
sible; and  the  minority  is  absolutely  unwilling  to 
accept  subordination  because  the  majority  so  decrees. 
In  short  a  truly  public  opinion  on  any  matter 
touching  the  question  of  race  cannot  exist  in  a 
country  torn  asunder  by  antagonisms  of  that  kind. 

16.   Irreconcilables  in  Politics 

In  countries  with  a  popular  or  semi-popular 
form  of  government  the  conflict  of  races  is  the  most 
obvious  factor  that  interferes  with  the  formation  of 
a  real  public  opinion,  but  it  is  not  the  only  one.  In 
several  nations  at  the  present  day  there  are  large 
bodies  of  irreconcilables  who  are  unwilling  for  other 
reasons  to  abide  by  the  decision  of  the  majority  on 
the  most  fundamental  of  all  political  questions,  the 
form  of  government  and  the  right  of  the  existing 
authorities  to  rule.  They  submit,  for  the  moment, 
because  there  is  no  immediate  prospect  of  success- 
ful resistance,  but  so  far  as  they  are  concerned  no 
general  or  public  opinion  can  be  said  to  exist  in  the 
land. 

In  his  recent  book  on  The  France  of  Today,  Pro- 
fessor Barrett  Wendell  has  portrayed  one  aspect 
of  this  state  of  things.     Not  only  is  the  monarchical 


§  IG]  Irreconcilables  in  Politics  33 

minority  irreconcilable,  refusing  to  consider  itself 
under  any  obligation  to  accept  as  final  the  verdict 
of  the  mass  of  the  French  people  on  the  form  of 
government,  but,  as  he  points  out,  the  dominant 
majority  is  disinclined  to  conciliate  that  minority 
on  any  question  or  to  take  its  views  into  account. 
Its  attitude  is  rather  one  of  repressive  hostility. 
The  majority,  therefore,  is  not  making  an  effort  to 
create  a  true  public  opinion,  in  the  sense  in  which 
we  are  using  the  term;  and  so  long  as  both  parties 
maintain  such  a  relation,  no  opinion  of  that  kind  is 
possible. 

Examples  of  irreconcilables,  always  more  or  less 
bitter,  may  be  found  in  the  cases  of  the  Irish  Nation- 
alists, of  the  Clericals  in  Italy,  of  the  Poles,  Danes, 
and  Alsatians  in  Germany,  and  of  the  many  strug- 
gling races  in  the  conglomerate  of  Austria-Hungary 
—  to  speak  only  of  countries  that  have  enjoyed  for 
some  time  representative  institutions.  We  have 
had  in  America  also  our  own  painful  experience 
during  the  period  of  Reconstruction  after  the  Civil 
War,  when  the  white  people  of  the  states  under 
carpet-bag  rule  may  be  fairly  said  to  have  been 
irreconcilable,  although  in  all  of  those  states  they 
formed  in  fact  the  effective  majority  of  the  popu- 
lation. Until  the  period  came  to  an  end  it  was 
clearly  a  misnomer  to  speak  of  the  administration 
of  the  southern  states  as  government  by  public 
opinion. 

In  a  territory  recently  conquered,  like  Alsace- 
Lorraine  after  the  Franco-German  war,  the  presence 
of   irreconcilables   is   natural;    but   they   may   also 


34  The  Nature  of  Public  Opinian        [§  17 

thrive  in  old  communities  if  there  are  among  the 
people  deep  lines  of  cleavage  based  upon  race, 
religion,  sharp  historical  conflicts,  or  upon  radical 
changes  due  to  social  or  economic  ills  that  cannot 
be  treated  without  political  surgery.  The  dissen- 
sions may  not  touch  the  form  of  the  government 
itself  or  the  general  right  of  the  constituted  authori- 
ties to  rule.  They  may  relate  only  to  a  particular 
policy  which  a  fraction  of  the  people  regard  as 
wholly  inadmissible;  yet  in  such  a  case,  if  the  parties 
are  evenly  balanced  enough  to  give  to  forcible  re- 
sistance a  fair  chance  of  success,  the  struggle  is 
liable  to  assume  before  long  a  revolutionary  form. 
This  was  true  of  the  quarrel  with  Charles  I  over 
ship-money  and  of  the  objection  by  the  American 
colonies  to  being  taxed  by  Parliament  without  their 
own  consent.  But  even  when  there  is  no  danger 
of  an  appeal  to  arms,  the  presence  of  a  large  body 
of  men  who  are  irreconcilable,  on  questions  that 
arise  frequently  and  unavoidably,  undermines  the 
foundation  on  which  democracy  is  based,  because  on 
those  questions  public  opinion,  as  we  have  defined 
it,  and  therefore  the  direction  of  political  affairs  by 
public  opinion,  is  impossible.  A  community  in 
which  such  a  state  of  things  is  chronic  is  obviously 
not  completely  fitted  for  popular  government. 

17.   Homogeneity  of  Population  a  Condition  of  Public  Opinion 

One  essential  condition,  then,  of  public  opinion 
is  that  the  people  should  be  homogeneous  to  such 
a  point  that  the  minority  is  willing  to  accept  the 
decision  of  the  majority  on  all  questions  that  are 


§  17]  Need  of  Homogeneity  35 

normally  expected  to  arise.  It  is,  indeed,  largely  a 
perception  of  the  need  of  homogeneity,  as  a  basis  for 
popular  government  and  the  public  opinion  on  which 
it  rests,  that  justifies  democracies  in  resisting  the 
influx  in  great  numbers  of  a  widely  different  race. 
Quite  apart  from  any  effect  on  the  standard  of  life 
of  laboring  men,  Americans  and  Australians  feel 
that  Asiatics  cannot  be  assimilated  so  as  to  form 
an  integral  and  indistinguishable  part  of  the  popu- 
lation. Mr.  Bryce  tells  us  that  the  excellence  of 
popular  government  consists,  not  in  its  wisdom, 
but  in  its  strength;  this  strength  depends,  however, 
on  the  fact  that  the  people  are  so  homogeneous  that 
public  opinion  touches  them  all. 

Differences  of  race  do  not  always  prevent  a  people 
from  being  politically  homogeneous;  a  fact  abun- 
dantly proved  by  the  experience  of  Switzerland, 
where  three  races,  professing  two  creeds,  are  carry- 
ing on  a  highly  successful  democracy  in  perfect  har- 
mony. Race  is  merely  one  of  the  many  factors  that 
tend  to  divide  a  people.  The  essential  point  is  that 
all  elements  of  the  population  should  be  capable  of 
common  aims  and  aspirations,  should  have  a  com- 
mon stock  of  political  traditions,  should  be  open  to 
a  ready  interchange  of  ideas,  and  should  be  free 
from  inherited  prejudices  that  prevent  mutual  un- 
derstanding and  sympathy.  This  is  a  matter  which 
thoughtful  Americans  must  ponder  seriously.  If 
the  huge  masses  of  immigrants  coming  yearly  to 
the  United  States  can  be  assimilated  within  a 
couple. of  generations  so  as  to  be  an  indistinguish- 
able part  of  the  population,  well  and  good;    if  not. 


36  The  Nature  of  Public  Opinion        [§  18 

the  peril  to  popular  institutions  is  real,  for  without 
homogeneity  a  nation  may  be  great,  but  it  can  hardly 
be  a  successful  democracy. 

A  community  not  homogeneous  enough  to  have  a 
public  opinion  on  ordinary  political  questions,  and 
hence  ill  adapted  for  popular  institutions,  might 
seem  incapable  of  any  government  save  one  main- 
tained by  force.  But  this  is  not  necessarily  true, 
because  people  who  recognize  their  inability  to 
agree  and  dread  the  danger  of  civil  strife  may 
submit  willingly  to  a  ruler  who  will  not  allow  any 
part  of  his  subjects  to  oppress  the  rest.  A  monarch 
reigning  over  a  mixed  people,  and  not  a  bigot,  tends 
to  be  cosmopolitan  in  his  sympathies,  to  have  some 
regard  for  all  classes  of  his  subjects.  On  the  other 
hand  religious  intolerance  and  racial  antipathy,  the 
horror  of  the  man  with  an  unfamiliar  form  of  wor- 
ship, the  instinctive  dislike  of  the  man  who  speaks 
a  different  tongue  or  pronounces  his  words  in  a 
strange  way,  usually  increase  as  one  descends  in  the 
social  scale.  The  result  is  that  deep-seated  diver- 
gencies of  this  kind  not  only  unfit  a  country  for 
popular  government,  but  an  attempt  to  introduce 
it  tends  to  magnify  them.  The  strife  of  races  has 
increased  in  the  Austrian  Empire  with  the  growth 
of  representative  assemblies,  and  the  Irish  demand 
for  Home  Rule  became  louder  with  each  extension 
of  the  sufi'rage. 

18.   Another  Condition  is  Freedom  of  Expressing  Dissent 

This  brings  us  to  another  factor  essential  to  the 
existence  of  a  public  opinion,  the  freedom  of  the 


§  18]        Freedom  of  Expressing  Dissent  37 

minority  to  propagate  their  views  by  all  fair  and 
peaceable  means.  Without  the  right  of  persuasion 
the  minority  would  not  be  satisfied  that  the  policy 
of  the  government  embodied  the  deliberate  wishes 
of  a  majority,  and  therefore  expressed  a  real  public 
opinion  to  which  they  were  bound  to  submit.  In  a 
modern  popular  government,  where  the  whole  people 
are  never  within  reach  of  a  man's  voice,  where  the 
chief  difficulty  consists  less  in  making  them  weigh 
argument  than  in  making  them  listen  to  argument 
at  all,  the  right  of  persuasion  involves  freedom  of 
speech,  of  publication,  and  of  organization.  Hence 
we  find  these  matters  wholly  free  in  countries  that 
have  enjoyed  popular  government  for  any  consider- 
able length  of  time.  Within  the  limits  of  a  possible 
public  opinion  —  that  is,  within  the  sphere  where  it 
is  conceivable  that  the  majority  might  be  convinced 
and  the  minority  might  willingly  submit  —  democ- 
racy does  not  suppress  utterances  repugnant  to  it, 
although  it  often  ignores  them.^  It  is  partly,  as  Mr. 
Bryce  points  out,  this  very  freedom  of  discussion 
that  causes  what  he  calls  the  fatalism  of  the  mul- 
titude, in  contradistinction  to  the  tyranny  of  the 
majority  —  a  fatalism  which,  he  tells  us,  helps  the 
action  of  opinion  as  a  governing  power,  enabling  it 
to  prevail  more  swiftly  and  to  acquire  a  solidity 
that  strengthens  the  whole  body  politic. ^ 

1  While  this  condition  is  essential  in  popuhir  governments,  it  is  by 
no  means  confined  to  them.  Tarde  {Les  Transformations  dii  Pouvoir, 
p.  183)  remarks  that  the  Roman  Empire  was  greater  than  all  others 
because  it  opened  a  field  for  the  competition  of  the  ideas  of  all  the 
little  nations  comprised  within  its  borders. 

^  American  Commonwealth,  Ed.  of  1910,  Chap.  Ixxxv. 


38  The  Nature  of  Public  Opinion        [§  18 

Sanguine  enthusiasts  for  democracy  are  inchned 
not  only  to  regard  it  as  a  panacea  for  all  ills,  but  also 
to  believe  that  it  possesses  an  infallible  power  to 
create  the  conditions  needed  for  its  own  successful 
operation.  They  are  apt  to  urge,  as  the  first  step 
in  a  country  hitherto  despotically  ruled,  the  creation 
of  a  popular  representative  assembly',  assuming  that 
practice  in  the  art  of  self-government  will  rapidly 
develop  the  qualities  essential  for  a  genuine  public 
opinion.  But  to  throw  a  child  suddenly  into  deep 
water  and  expect  him  to  teach  himself  to  keep  afloat 
is  as  irrational  as  to  forbid  him  to  enter  the  water 
until  he  has  learned  to  swim.  Preparation  and 
practice  must  go  on  together  gradually;  and  the 
preparation  consists  largely  in  the  growth  of  political 
homogeneity  and  of  the  interchange  of  ideas,  Eng- 
land was  prepared  for  self-government  by  the  Nor- 
man and  Angevin  kings  who  forced  upon  the  people 
a  common  nationality  and  a  common  law,  while 
the  habit  of  discussing  public  affairs  was  well  estab- 
lished long  before  Parliament  acquired  supremacy. 
Even  in  a  highly  advanced  state  of  civilization  a 
representative  assembly,  set  up  before  the  commu- 
nity is  capable  of  a  real  public  opinion,  is  liable,  if 
not  a  mere  sham,  to  result  for  a  time  in  the  oppres- 
sive rule  of  a  class,  —  as  happened  in  Prussia  for 
the  dozen  years  after  the  convulsions  of  1848  — 
or  to  develop  corruption,  such  as  was  used  to  work 
the  parliamentary  form  of  government  in  France 
under  Louis  Philippe.  For  that  reason  it  is  un- 
necessary to  shed  too  many  tears  over  the  present 
condition  of  the  Russian  Douma.     The  important 


§  18]        Freedom  of  Expressing  Dissent  39 

thing  for  the  moment  is  not  that  it  should  be  fairly 
representative,  but  that  it  should  survive.  So  long 
as  it  exists  at  all,  with  a  few  spokesmen  for  the 
opposition,  it  is  paving  the  way  for  popular  insti- 
tutions. Those  men  cannot  be  effectively  muzzled 
within  its  walls,  their  speeches  are  certain  in  time 
to  be  allowed  a  publicity  that  will  entail  freedom  of 
discussion  outside,  and  when  the  country  has  come 
to  the  point  of  forming  opinions  that  are  truly  public 
they  will  find  an  utterance  that  cannot  be  disre- 
garded. 

Freedom  of  expressing  dissent  includes  liberty  of 
organization,  and  in  order  that  this  may  be  com- 
pletely effective  it  must  not  be  confined  to  purely 
political  objects,  but  must  become  a  part  of  the 
popular  customs,  covering  all  matters  in  which 
people  are  interested;  a  point  which  France,  with 
all  her  democratic  theories,  did  not  reach  in  anything 
like  its  fulness  until  more  than  a  century  after  the 
Revolution.  But  while  freedom  of  organization  is 
necessary  for  the  formation  of  a  true  public  opinion, 
if  carried  too  far  it  is  likely  to  falsify  that  very 
public  opinion  itself,  as  we  shall  have  occasion  to 
observe  in  discussing  political  parties.  Rousseau 
felt  the  danger  so  strongly  as  to  assert  that  a  com- 
munity in  which  parties  or  factions  exist  is  incapable 
of  a  common  will,  because  under  the  influence  of 
such  bodies  a  man  does  not  form  his  own  opinions 
freely.  The  last  century  has  certainly  been  marked 
by  an  apparent  increase  in  the  power  of  corporate, 
as  compared  with  personal,  motives.  A  hundred 
years  ago  democratic  theories  were  individualistic. 


40  The  Nature  of  Public  Opinion        [§  18 

They  treated  the  state  as  a  sum  of  equal  and  inde- 
pendent units.  Now  we  have  learned  that  man  is 
a  social  being,  not  only  in  Aristotle's  sense,  that  he 
is  constrained  by  his  nature  to  be  a  member  of  a 
state,  but  also  in  the  broader  sense  that  he  is  bound 
by  subtle  ties  to  other  and  smaller  groups  of  persons 
within  the  state.  We  have  learned  to  recognize 
this;  and  what  is  more,  with  the  ease  of  organiza- 
tion fostered  by  modern  conditions,  the  number, 
the  complexity,  and  the  aggregate  strength  of  such 
ties  has  increased.  No  one  can  have  observed 
social  life  carefully,  under  any  aspect,  without 
seeing  that  cooperative  interests  have  in  some 
measure  replaced  personal  ones ;  that  in  its  conscious 
spirit  western  civilization  has  become  less  individ- 
ualistic, more  highly  organized,  or,  if  you  will,  more 
socialistic.  This  is  among  the  dominant  notes  of 
our  time,  and  while  the  change  is  for  the  better, 
because  it  means  greater  devotion  to  something 
higher  than  purely  personal  objects,  that  very  fact, 
whether  the  body  be  a  bank,  a  railroad  company  or 
a  trade  union,  may  cover  with  a  gilding  of  altruism 
what  is  after  all  only  cooperative  selfishness. 


CHAPTER  IV 

QUESTIONS  TO  WHICH  PUBLIC  OPINION  CAN  APPLY 

19.   Limits  Imposed  by  the  Necessity  that  the  Opinion 
be  Public 

The  principle  that  a  true  public  opinion  cannot 
exist  unless  the  minority  feel  bound  to  acquiesce 
in  the  decision  of  the  majority  not  only  renders 
government  by  public  opinion  imperfect,  or  even 
impossible,  in  some  countries,  but  also  limits  every- 
where the  subjects  to  which  it  can  apply.  We  see 
this  clearly  in  the  case  of  religion.  Everyone  of 
Western  European  stock  feels  today  that  the  state 
ought  not  to  meddle  with  his  religious  convictions. 
The  sharp  distinction  in  the  Middle  Ages  between 
the  spiritual  and  temporal  powers,  with  the  Pope 
and  his  hierarchy  directing  one,  and  the  Emperor 
or  King  and  his  vassals  conducting  the  other,  laid 
the  basis  for  a  distinction  between  ecclesiastical 
and  political  functions  which  bore  fruit  after  diver- 
gencies of  creed  became  profound  and  widespread. 
The  immediate  effect  of  the  Reformation  in  most 
countries  was  an  attempt  on  the  part  of  the  govern- 
ment to  enforce  religious  uniformity,  but  when  this 
failed,  as  it  did  in  the  more  progressive  nations,  the 
inevitable  secondary  effect  was  toleration. 

Nor  was  it  in  spiritual  freedom  alone  that  men 
gained  by  the  change,  for  the  elimination  from  poli- 

41 


42  The  Nature  of  Public  Opinion        [§  19 

tics  of  a  subject  on  which  the  minority  could  not 
conscientiously  submit  to  the  decision  of  the  majority 
removed  a  serious  obstacle  to  popular  government 
—  that  is,  to  the  decision  of  all  political  questions 
by  an  opinion  which  is  really  public.  It  is  safe  to 
say  that  if  any  nation  of  European  origin,  with  a 
popular  form  of  government,  were  now  to  forbid  a 
part  of  the  citizens  to  worship  according  to  their 
consciences,  those  men  would  regard  the  order  as 
beyond  the  sphere  where  they  were  under  a  moral 
obligation  to  obey.  A  similar  feeling  would  cer- 
tainly be  caused  by  the  proscription  of  political 
opponents,  by  laws,  for  example,  which  sent  them 
to  the  scaffold  or  into  exile.  It  might  be  provoked 
by  extreme  legislation  on  other  subjects,  such  as 
the  relations  of  parents  and  children  or  a  general 
attack  on  the  right  to  private  property. 

G.  Lowes  Dickinson  states  this  matter  lucidly. 
"Government  by  the  majority,"  he  says,  "is  a  con- 
venient means  of  conducting  national  affairs,  where 
and  in  so  far  as  there  is  a  basis  of  general  agreement 
deeper  and  more  persistent  than  the  variations  of 
surface  opinion ;  but  as  soon  as  a  really  fundamental 
point  is  touched,  as  soon  as  a  primary  instinct, 
whether  of  self-preservation  or  of  justice,  begins  to 
be  seriously  and  continuously  outraged,  the  demo- 
cratic convention  gives  way.  No  minority,  for  ex- 
ample, even  in  a  compact  modern  state,  either  would 
or  ought  to  submit  to  a  decision  of  the  majority  to 
prohibit  the  exercise  of  their  religion.  Such  a  deci- 
sion could  only  be  carried  into  effect  by  force,  sub- 
ject  to   the   contingency   of   armed   rebellion;     and 


§  19]      Limits  of   Opinion  that  is  Public         43 

orderly  government  would  dissolve  into  veiled  or 
open  civil  war.  ...  It  is  the  presupposition  of 
all  democratic  government  that  certain  principles, 
tacitly  understood  if  not  precisely  formulated,  will 
in  practice  be  observed  by  any  party  that  may  be 
in  power.  .  .  .  And,  in  my  opinion,  the  realization 
of  the  political  ideal  of  the  extremer  Socialists,  and 
the  attempt  by  that  particular  method  to  effect  a 
social  revolution,  without  any  fair  consideration  for 
the  claims  of  owTiers  of  property,  would  simply 
result  in  the  collapse  of  the  whole  convention  on 
which  the  possibility  of  government  depends."  ^ 

Graham  "Wallas,  who  is  moved  by  very  different 
sympathies,  is  probably  right  in  thinking  that 
property  in  such  a  case  would  resort,  not  to  resist- 
ance by  force,  but  to  corrupting  the  electorate.  To 
quote  his  words:  "Popular  election,  it  is  said,  may 
work  fairly  well  as  long  as  those  questions  are  not 
raised  which  cause  the  holders  of  wealth  and  indus- 
trial power  to  make  full  use  of  their  opportunities. 
But  if  the  rich  people  in  any  modern  state  thought 
it  worth  their  while,  in  order  to  secure  a  tariff,  or 
legalize  a  trust,  or  oppose  a  confiscatory  tax,  to 
subscribe  a  third  of  their  income  to  a  political  fund, 
no  Corrupt  Practices  Act  yet  invented  would  prevent 
them  from  spending  it.  If  they  did  so,  there  is  so 
much  skill  to  be  bought,  and  the  art  of  using  skill 
for  the  production  of  emotion  and  opinion  has  so 
advanced,  that  the  whole  condition  of  political  con- 
tests would  be  changed  for  the  future."  ^     If  either 

^  The  Development  of  Parliament  during  the  Nineteenth  Century,  pp. 
161,  162.  2  Human  Nature  in  Politics,  p.  5. 


44  The  Nature  of  Public  Opinion        [§20 

of  these  methods  of  resistance  were  adopted,  the 
result,  for  a  time  at  least,  would  be  a  destruction 
or  demoralization  of  popular  government,  which 
would  thereby  cease  to  exist  altogether  or  become, 
so  far  as  the  obnoxious  subjects  are  concerned,  a 
hollow  sham. 

Even  in  the  most  firmly  established  democracies 
there  are  questions  touching  a  chord  of  feeling  so 
deep  that  the  minority  would  not  voluntarily  sub- 
mit to  the  decision  of  the  majority.  To  such 
matters  a  genuine  public  opinion  cannot  apply, 
and  they  lie,  therefore,  beyond  the  province  of  pop- 
ular government.  ^Yhat  these  matters  are  cannot 
be  determined  by  any  universal  formula,  because 
they  vary  from  place  to  place  and  from  time  to  time; 
but  it  is  the  part  of  wise  statesmanship  to  recog- 
nize them  and  avoid  them  if  possible.  Although  in 
any  nation  there  may  come  periods  of  revolutionary 
change  when  questions  of  this  kind  force  themselves 
to  the  front,  yet  we  must  remember  that  to  agitate 
needlessly  subjects  lying  beyond  the  range  of  a 
true  public  opinion  tends  to  undermine  the  founda- 
tion of  popular  institutions.  A  successful  democracy 
which  pursues  its  course  without  shocks,  which 
works  without  violence  and  without  oppression, 
must  be  one  where  the  limits  of  a  possible  public 
opinion  are  generally  understood  and  observed. 

20.   Benefit  of  a  Written  Constitution 

We  may  remark  in  this  connection  that  one  of 
the  merits  of  a  written  constitution,  imposing  strict 
limitations  on  legislative  authority,  consists  in  lay- 


§  21]  Limits  of  Genuine  Opinion  45 

ing  down  in  definite  terms  the  "presupposition  of 
all  democratic  government,"  in  the  words  of  Mr. 
Dickinson,  "that  certain  principles  .  .  .  will  in 
practice  be  observed  by  any  party  that  may  be  in 
power."  A  constitution,  if  too  difficult  to  amend, 
may  in  time  cease  to  be  in  accord  with  those  prin- 
ciples; it  may  not  keep  pace  with  the  change  in 
political  conditions.  Or  if,  on  the  other  hand,  it 
is  too  elaborate,  it  may  include  matters  properly 
within  the  domain  of  ordinary  public  opinion, 
where  the  views  of  the  majority  ought  to  prevail; 
and  in  that  case  it  may  defeat  its  own  object,  by 
obscuring  the  distinction  it  ought  to  make  clear. 
But  errors  so  committed  do  not  disprove  the  benefit 
to  be  gained  by  an  authoritative  statement  of  the 
limits  beyond  which  the  prevalent  opinion  ought 
not  normally  to  be  decisive.  Among  a  people 
thoroughly  trained  in  the  difficult  art  of  self-govern- 
ment the  same  result  can,  of  course,  be  reached  by 
mutual  forbearance  without  a  written  constitution; 
nor  is  this  the  sole  object  of  such  a  document,  but 
it  is  certainly  one  of  its  chief  advantages. 

21.  Limits  Imposed  by  the  Nature  of  Opinion 

Beside  the  limits  placed  upon  the  subjects  to 
which  public  opinion  can  apply  by  the  fact  that  it 
must  be  public,  there  are  others  imposed  by  the 
fact  that  it  must  be  a  real  opinion.  The  people  of 
every  homogeneous  political  community,  however 
barbarous,  are  capable  of  a  true  opinion  on  some 
subjects;  and  no  people,  however  civilized,  are 
capable  of  forming  real  opinions  on  all   subjects. 


46  The  Nature  of  Public  Opinion        [§  22 

Whether  the  opinion  of  the  great  mass  of  citizens  is 
the  wisest  or  not,  hes  beyond  the  scope  of  our  present 
inquiry,  for  we  are  considering  not  the  merits  and 
defects  of  popular  government,  but  the  conditions 
under  which  it  can  be  carried  on.  Its  object  being 
to  give  effect  to  public  opinion,  it  can  evidently 
exist  only  where  such  an  opinion  is  possible  in  regard 
to  a  considerable  number  of  matters. 

We  have  seen  that  a  true  public  opinion  can  exist 
on  a  question  involving  apparent  harmony  or  con- 
tradiction with  settled  convictions;  and  that  it  can 
also  be  formed  where  the  bulk  of  the  people  are 
in  a  position  to  determine  of  their  own  knowledge 
or  by  weighing  evidence  a  substantial  part  of  the 
facts  required  for  a  rational  decision.  The  first  of 
these  conditions  is  true  of  great  moral  issues,  of 
questions  of  fundamental  policy  which  require  little 
knowledge  of  particular  facts.  In  such  cases  the 
popular  judgment  is  often  remarkably  sound  and 
not  infrequently  generous,  that  is,  contrary,  to  obvi- 
ous material  interests.  The  second  condition  is 
fulfilled  where  the  essential  facts  are  matters  of 
common  knowledge  from  everyday  experience,  or 
where  they  have  been  so  much  discussed  that 
familiarity  with  them  has  been  generally  diffused. 
"VMien  it  is  not  fulfilled,  and  this  is  often  the  case 
w^th  new  questions,  especially  where  much  detail  is 
involved,  no  real  public  opinion  is  possible. 

22.   Knowledge  of  Facts  Increasingly  Difficult 

Now  the  rapid  evolution  of  democracy  during  the 
last  centurv,  and  the  extension  of  the  suffrage  to 


§  22]  Facts  Increasingly  Difficult  47 

larger  and  larger  masses  of  men,  would  seem  to 
imply  that  the  people  were  becoming  ever  more 
capable  of  mastering  the  facts  needed  for  an  opinion 
on  public  matters,  and  hence  better  fitted  to  play 
a  direct  part  in  deciding  the  questions  of  the  day. 
No  doubt  they  are,  as  a  rule,  far  better  educated, 
both  by  the  common  schools  and  by  political  experi- 
ence; but  at  the  same  time  it  is  more  diflScult  for 
anyone  to  become  familiar  with  all  the  facts  required 
for  the  solution  of  current  problems.  With  the 
accumulation  of  human  knowledge,  with  the  growth 
of  man's  control  over  the  forces  of  nature,  with  the 
greater  complexity  of  modern  transactions  and  of 
modern  society,  the  amount  of  information  needed 
to  form  an  intelligent  opinion  upon  public  affairs 
has  been  constantly  increasing.  It  has  been  sug- 
gested, as  an  explanation  of  the  selection  of  adminis- 
trative bodies  in  Athens  by  lot,  that  any  ordinary 
Athenian  citizen  was  competent  to  judge  whether 
a  trireme  was  seaworthy  and  properly  provided 
with  oars,  sails,  arms  and  provisions,^  But  the 
ordinary  man  today,  or  the  ordinary  member  of 
Congress  or  of  Parliament,  is  wholly  unable  by  his 
own  unaided  observation  to  form  an  opinion  of  any 
value  on  the  condition  of  the  hull,  machinery,  or 
armament  of  a  battleship.  In  the  same  way  any 
sensible  Yankee  farmer  who  found  himself  two  hun- 
dred years  ago  on  a  committee  intrusted  with  the 
care  of  the  schools  in  his  town  might  be  capable 
of  knowing  whether  the  little  red  schoolhouse  was 
properly  built  and  whether  the  teacher  was  quali- 

^  Headlam,  Use  of  the  Lot  in  Athens,  p.  161. 


48  The  Nature  of  Public  Opinion        [§  22 

fied  to  teach  the  three  R's;  while  the  best  equipped 
member  of  a  school  board  in  a  large  city  at  the  present 
time  is  unfit  for  his  ofiice  if  he  attempts  to  decide 
questions  either  of  schoolhouse  construction  or  of 
education  without  the  aid  of  expert  advice. 

It  will,  of  course,  be  pointed  out  that  if  the  on- 
ward march  of  natural  science  and  mechanical  inven- 
tion has  rendered  the  problems  of  modern  life  more 
complex,  it  has  also  enlarged  vastly  the  means  of 
diffusing  information.  We  shall  be  referred  to  the 
railroad,  the  telegraph,  and  above  all  to  the  daily 
press.  We  shall  be  told  that  the  greater  rapidity, 
ease,  and  cheapness  of  travel  and  communication 
have  promoted  an  interchange  of  ideas  and  informa- 
tion far  more  extensive  than  ever  before;  that  the 
newspapers  place  within  the  reach  of  everyone  at  a 
trifling  cost  a  daily  bulletin  of  the  current  events. 
All  that  is  perfectly  true,  but  the  question  is  whether 
these  agencies  are  keeping  pace  with  the  grow- 
ing complexity  of  affairs.  It  may  be  doubted,  for 
example,  whether  the  newspapers,  although  more 
voluminous  than  they  were  formerly,  exhibit  on  the 
whole  greater  enterprise  and  sincerity  than  they  did 
a  generation  ago  in  laying  before  their  readers  the 
facts  needed  for  an  intelligent  and  impartial  opinion 
on  public  matters;  and  yet  the  progress  of  science, 
of  the  arts  and  of  business,  during  that  period  has 
complicated  those  matters  enormously. 

That  the  greater  facility  of  obtaining  information 
at  the  present  day  has  not  in  business  affairs  kept 
pace  with  the  growing  complexity  of  modern  life, 
in  the  sense  of   enabling  a  man  to  deal  as  readily 


§  22]  Facts  Increasingly  Difficult  49 

with  problems  of  all  kinds,  may  be  surmised  from  the 
increasing  specialization  of  occupations.  Seventy 
years  ago  a  merchant  in  America  was  deemed  fit  to 
manage  a  factory  or  a  railroad,  but  now  these  pur- 
suits have  become  professions  demanding  special 
knowledge  and  experience.  The  process  has  been 
going  on  in  a  greater  or  less  degree  throughout  the  in- 
dustrial world,  and  indeed  in  all  fields  of  activity  and  of 
thought.  Anyone  past  middle  life  can  cite  instances 
of  it  in  subjects  with  which  he  has  been  brought  into 
contact.  The  progress  of  specialization  means 
that  a  man  of  good  intelligence  and  education,  with 
all  the  sources  of  general  information  within  his 
reach,  is  less  competent  than  he  was  formerly  to 
decide  the  questions  that  arise  in  a  vocation,  not 
his  own,  with  which  he  has  had  no  particular  famil- 
iarity. If  this  is  true  of  business  and  of  the  other 
concerns  of  private  life,  it  may  not  be  less  true  of 
public  afi^airs,  for  public  work  has  not  only  shared 
the  growing  complexity  of  all  modern  life,  but  the 
government  has  been  constantly  expanding  its 
sphere  of  operation  by  assuming  new  and  delicate 
functions. 

It  is  not  improbable,  therefore,  that  the  amount 
of  knowledge  needed  for  the  administration  of  public 
affairs  is  increasing  more  rapidly  than  the  diffusion 
of  such  knowledge,  and  that  this  is  lessening  the 
capacity  of  the  ordinary  citizen  to  form  an  opinion 
of  his  own  on  the  various  matters  that  arise  in 
conducting  the  government.  If  so,  the  range  of 
questions  about  which  the  public  cannot  form  a 
real  opinion  tends  to  enlarge,  or  at  least  does  not 
4 


50  The  Nature  of  Public  Opinion        [§23 

diminish.  This  is  particularly  true  where  the  special 
knowledge  of  experts  is  involved,  because  it  is  not 
easy  for  the  community  at  large  to  weigh  expert 
opinion.  Few  things  are,  in  fact,  more  difficult,  or 
require  greater  experience;  and  yet  the  number  of 
questions  on  which  the  advice  of  experts  is  indis- 
pensable grows  with  every  advance  in  technical 
knowledge    and    mechanical    invention. 

23.   Examples 

That  there  are  limits  to  the  subjects  on  which  a 
genuine  opinion  can  be  formed  by  the  public  will 
hardly  be  denied;  and  it  will  be  readily  admitted 
by  anyone  who  asks  himself  candidly  upon  how 
many  of  the  current  political  questions,  national, 
state,  and  municipal,  he  feels  competent  to  express 
a  personal  opinion  of  any  real  value,  without  an 
investigation  that  requires  more  time  than  he  can 
spare.  Again  we  are  met  by  the  impossibility  of 
laying  down  general  formulas  to  determine  when  a 
public  opinion  can  and  when  it  cannot  exist.  A  few 
suggestions  may,  however,  be  ventured  about  the 
obstacles  presented  by  different  classes  of  matters. 
Owing  to  the  difficulty  of  mastering  the  facts  required 
for  an  intelligent  decision,  the  people  are,  as  a  rule, 
more  capable  of  forming  an  opinion  on  a  general 
principle  than  of  applying  it  to  a  concrete  case, 
more  competent  to  appreciate  the  policy  of  legisla- 
tion than  the  wisdom  of  a  particular  statute,  better 
judges  of  grievances  than  of  the  choice  of  remedies.^ 

On  account  of  the  same  difficulty  of  becoming 

^  Cf.  Lewis,  Influence  of  Authority,  chap,  vi,  pp.  173,  17-1. 


§  23]  Examples  51 

familiar  with  the  facts,  the  information  needed  to 
decide  a  question  involving  a  considerable  amount  of 
detailed  knowledge  is  more  likely  to  be  possessed 
by  the  people  of  a  small  community  than  of  a  large 
one.  It  is  more  likely  to  be  possessed  by  all  the 
people  when  the  question  touches  an  interest  in 
which  they  are  all  engaged  than  when  it  touches 
one  in  which  only  a  part  of  them  are  directly  inter- 
ested. A  farming  country  is  more  likely  to  under- 
stand agricultural  questions,  a  small  community 
devoted  wholly  to  the  manufacture  of  shoes  is  more 
likely  to  be  familiar  with  the  needs  of  that  trade, 
than  the  people  of  a  huge  metropolis  are  to  grasp 
the  problems  of  any  particular  industry.  In  the 
former  cases  the  opinion  may  be  more  prejudiced, 
but  it  will  probably  be  more  intelligent.  In  the 
great  city,  if  the  people  are  less  biased,  they  are  also 
less  competent  to  form  any  real  opinion  at  all.  It 
follows  that,  on  a  question  involving  a  considerable 
amount  of  detailed  knowledge,  a  true  public  opinion 
is  more  likely  to  exist  in  a  rural  district  or  a  small 
town  than  in  a  large  city  where  occupations  are 
of  necessity  more  diversified;  more  likely  to  exist 
in  a  local  community  than  in  a  state;  more  likely 
to  exist  in  a  state  than  in  the  whole  nation. 

The  obstacle  to  the  formation  of  a  public  opinion 
arising  from  the  difficulty  of  mastering  the  facts 
occurs  in  many  kinds  of  special  legislation;  in  some 
cases,  for  example,  of  grants  of  public  franchises. 
The  people  may  well  have  a  decided  opinion  upon 
the  general  principles  that  ought  to  govern  the  con- 
ferring or  withholding    of    such  privileges    and  yet 


52  The  Nature  of  Public  Opinion        [§  23 

be  quite  unable  to  determine  whether  the  principles 
have  been  observed  in  any  particular  instance.  The 
act  or  grant  may  seem  needlessly  liberal  or  the 
reverse,  when  in  reality  it  is  not  so,  especially  if 
people  are  inclined  to  be  suspicious  of  the  motives 
of  legislators.  It  is,  in  fact,  the  difficulty  of  forming 
an  opinion  of  any  value  on  such  matters,  without 
very  careful  study,  that  has  given  unscrupulous 
legislators  a  free  hand  and  rendered  possible  many 
cases  of  improper  grants  of  privileges.  Unfortu- 
nately this  subject,  where  a  real  public  opinion  is 
least  likely  to  exist,  is  the  very  one  in  which  the 
American  representative  system  has  proved  most 
disappointing. 

The  difficulty  of  forming  a  public  opinion  is  pecu- 
liarly great  also  where  an  act  is  the  result  of  a  com- 
promise. The  word  has  an  evil  sound,  and  rightly 
so,  when  it  means  a  concession  to  selfish  interests  or 
sinister  motives.  But  it  has  also  a  good  side,  where 
it  signifies  a  middle  path  between  extreme  views 
or  the  surmounting  of  serious  objections,  for  com- 
promise in  the  best  sense  is  the  tap  root  of  enduring 
legislation.  In  that  case  a  compromise  measure  may 
in  reality  be  in  close  accord  with  what  the  opinion 
of  the  people  would  be  if  they  understood  the  whole 
situation,  and  yet  popular  distrust  and  the  opposi- 
tion of  extremists  on  both  sides  may  easily  con- 
demn it  in  public  estimation.  This  is  one  of  many 
cases  where  inal)ility  to  learn  the  facts  may  make  a 
genuine  public  opinion  impossible  and  an  apparent 
one  misleading. 


§  24]         Uncertainty  of  Public  Opinion  53 


24.   Difficulty  in  Foretelling  whether  a  Public  Opinion  will 
be  Formed 

While  we  may  indicate  the  limits  of  a  possible 
public  opinion  in  general  terms,  it  is  not  always 
self-evident  whether  or  not  the  conditions  obtain 
in  a  particular  case.  We  have  seen  that  the  public 
can  form  an  opinion  when  a  question  has  been  so 
much  discussed  that  familiarity  with  it  is  widely 
diffused;  and  that  this  is  more  likely  to  be  true  of 
a  general  principle  than  of  a  concrete  application 
involving  complex  facts.  But  the  shrewdest  prophet 
cannot  always  foretell  when  the  public  will  care 
enough  about  a  subject  to  discuss  it  fully.  Some- 
times their  interest  is  unexpectedly  keen.  This  is 
often  true  of  personal  questions,  for  the  mass  of 
mankind  has  more  sympathy  with  the  fortunes  of 
an  individual  than  with  the  fate  of  a  principle,  and 
hence  are  often  better  qualified  to  select  a  man  for 
office  than  to  pass  judgment  on  his  measures.  One 
thing  is  clear:  public  interest  can  rarely  be  stimu- 
lated artificially.  No  device  except  a  popular 
assembly  has  ever  been  invented  whereby  the  mass 
of  the  people  can  be  made  to  expend  considerable 
effort  on  mastering  facts  that  do  not  touch  their 
imagination  or  affect  closely  their  daily  lives.  While, 
therefore,  they  may  occasionally  pay  an  unusual 
amount  of  attention  to  some  particular  matter,  a 
political  system  wisely  framed  will  refer  to  public 
opinion  those  questions  alone  on  which  such  an 
opinion  can  reasonably  be  expected  to  exist. 

The  fact  that  on  many  of  the  questions  arising 


54  The  Nature  of  Public  Opinion        [§24 

in  the  administration  of  a  modern  state  no  true 
pubhc  opinion  is  possible  does  not  mean  that  with 
such  questions  popular  government  has  no  concern, 
or  that  public  opinion  cannot  control  their  determi- 
nation. The  presence  of  such  matters  involves  no 
condemnation  of  democracy,  but  a  consideration  of 
its  mode  of  operation.  It  demands  a  careful  study 
of  the  subjects  to  which  public  opinion  is  directly 
applicable,  and  the  regulation  of  others  by  one 
of  the  indirect  popular  methods  to  be  described 
hereafter. 


Part   II 
The  Function  of  Parties 


Part  II 

The  Function  of  Parties 


CHAPTER  V 

ADVERTISEMENT  AND  BROKERAGE 

25    Mobility  of  Modem  Life 

Democracy,  as  we  see  it  at  the  present  day,  means 
many  things.  They  may  not  all  be  of  necessity  in- 
terdependent or  even  consistent  with  one  another, 
but  we  find  them  linked  together  in  the  civilization 
in  which  we  live.  In  its  political  aspect  democracy 
means  popular  government,  the  exercise  of  power 
by  the  mass  of  the  people.  In  its  social  aspect  it 
means  equality  of  opportunity,  which  was  expressed 
by  Napoleon  in  the  phrase  "Za  carriere  ouverie  au 
talens,''  and  by  Pasteur,  in  a  loftier  vein,  when  he 
said  that  it  enabled  every  man  to  put  forth  his 
utmost  effort.  The  enlarged  opportunity  is  fur- 
nished by  a  greater  mobility,  due  in  part  to  the 
fact  that  status  and  property,  which  were  the 
pillars  of  an  earlier  society,  have  been  to  a  great 
extent  replaced  by  contract  and  credit;  and  the 
change  in  social  conditions  which  this  implies  has 
been  accelerated  in  the  last  hundred  years  by  the 
advance  in  mechanical  inventions.  With  the  break- 
ing up  of  former  industrial  methods,  with  the  huge 

57 


58  The  Function  of  Parties  [§26 

accumulation  of  movable  capital  seeking  invest- 
ment, with  the  vast  growth  in  the  means  of  distrib- 
uting products  and  spreading  information,  society 
has  lost  its  rigidity  and  become  far  more  fluid  than 
of  old. 

With  the  increase  of  opportunity  the  force  of 
habit  has  declined.  Men  do  not  walk  in  the  beaten 
track  so  much  as  they  did  in  the  days  of  our  great 
grandfathers,  but  turn  aside  more  freely  into  new 
paths.  They  are  less  addicted  to  living  all  their 
lives  in  the  same  house,  dealing  at  the  same  shop 
or  with  the  same  people,  buying  the  same  wares 
and  reading  the  same  newspaper.  People  are  more 
easily  brought  to  change  these  things;  while  at  the 
same  time  it  has  become  more  than  ever  for  the  inter- 
est of  tradesmen  to  induce  them  to  make  the  change, 
because  the  declining  margin  of  profit  has  taught 
men  the  necessity  of  increasing  the  volume  of  their 
business,  of  striving  to  conduct  their  affairs  on  a  larger 
scale.  It  has  therefore  become  far  easier  and  more 
profitable  than  in  the  past,  by  catching  the  attention, 
to  win  the  patronage  of  great  numbers  of  people. 

26.   The  Age  of  Advertisement 

In  short,  we  live  in  an  age  of  advertisement. 
Lipton's  teas,  Sapolio,  and  a  hundred  other  things, 
good,  bad,  and  indifferent,  force  themselves  upon 
you  from  the  front  page  of  your  newspaper  at 
breakfast,  from  the  calendar  and  the  blotting  pad 
on  your  desk.  They  glare  at  you  in  the  street  cars 
and  from  the  house  tops.  They  hide  the  empty 
lots  in  the  city  and  the  landscape  from  the  window 


§  26]  The  Age  of  Advertisement  59 

of  the  raihoad  train.  Advertisement  as  an  art  has 
been  brought  to  a  high  state  of  efficiency  and  yields 
great  rewards  to  those  who  understand  its  mys- 
teries. In  its  lower  forms  it  tends  to  sensationalism 
in  its  effort  to  catch  the  eye  or  ear.  The  profits  of 
the  daily  press  are  based  today,  not  on  the  payments 
of  the  subscribers,  but  on  the  advertisements;  and 
as  these  depend  on  the  circulation,  there  is  a  ten- 
dency on  the  part  of  the  managers  to  lower  the  price 
of  the  newspaper,  to  care  less  for  the  real  merits  of 
the  contents,  for  the  solidity  of  the  editorials,  for  the 
accuracy  and  value  of  the  news,  and  more  for  the 
power  of  captivating  the  multitude. 

Even  in  regions  far  removed  from  trade,  adver- 
tisement is  a  potent,  if  not  a  necessary,  agency.  The 
most  dignified  of  our  institutions,  our  universities, 
have  felt  constrained  to  resort  to  it;  not  blatantly, 
but  in  insidious  and  appropriate  ways.  Moreover, 
for  anyone  who  desires  to  advocate  a  new  idea,  the 
difficulty  is  not  so  much  to  convince  as  to  get  a 
hearing,  not  so  much  to  be  judged  fairly  as  to  be 
judged  at  all.  The  most  effective  methods  of  reach- 
ing that  goal  are  to  say  something  sensational  and 
startling,  or  to  hold  a  post  that  in  itself  attracts 
attention.  This  is  one  of  the  growing  advantages  of 
official  position  of  any  kind,  because  the  occupant, 
being  prominent  by  virtue  of  his  office,  is  in  the 
public  eye  and  is  listened  to  by  a  large  audience. 
Uttered  by  one  in  high  office,  platitudes  become 
oracular. 


60  The  Function  of  Parties  [§27 

27.   The  Age  of  Brokers 

The  same  conditions  that  have  caused  the  great 
development  of  advertising,  where  the  mass  of  the 
pubHc  must  be  reached,  have  fostered  another 
agency  in  the  case  of  transactions  which  affect  a 
smaller  class  of  persons.  The  mobility  of  capital, 
with  the  range  of  unknown  individuals  that  may 
want  to  purchase  what  others  are  ready  to  sell, 
has  evolved  a  new  profession  whose  function  consists 
in  bringing  buyer  and  seller  together.  Its  members 
may  affect  a  trade  between  single  individuals,  or 
they  may  work  on  a  larger  scale,  for  success  in  the 
huge  industrial  concerns  of  our  time  requires  capital, 
furnished  in  the  main  by  a  class  of  investors  beyond 
the  reach  of  ordinary  advertisement  and  attracted 
only  by  persons  in  whom  they  have  confidence. 
One  of  the  most  lucrative  occupations  at  the  pres- 
ent day  is  that  of  bankers  or  brokers  with  a  wide 
clientele,  who  can  persuade  many  people  to  embark 
in  enterprises;  and  the  business  yields  enormous 
profits  because  it  is  indispensable  in  large  financial 
transactions.  On  all  scales,  therefore,  large  and  small, 
from  the  commercial  traveller  and  the  man  who 
negotiates  the  sale  of  a  single  plot  of  land,  to  the 
great  banking  house  which  places  millions  of  bonds 
or  prevails  upon  the  security  holders  of  a  gigantic 
railroad  to  consent  to  a  reorganization,  the  world  is 
dependent  on  the  agency  of  brokers  far  more  than 
ever  before.    In  fact  we  live  in  an  age  of  brokers. 


§  28]  Politicians  as  Brokers  61 

28.   Politicians  as  Brokers 

In  politics  the  extension  of  the  suffrage,  coupled 
with  the  growth  in  population  of  the  great  nations, 
has  had  a  similar  effect;  for  the  larger  the  number 
of  individual  minds  concerned  with  public  affairs 
the  greater  the  difficulty  of  reaching  an  agreement, 
or  in  other  words  of  forming  and  expressing  opinions. 
If  all  men  took  a  keen  interest  in  public  affairs, 
studied  them  laboriously,  and  met  constantly  in  a 
popular  assembly  where  they  were  debated  and 
decided,  there  would  be  no  need  of  other  agencies 
to  draw  attention  to  political  questions.  But  in  a 
modern  industrial  democracy,  where  the  bulk  of  the 
voters  are  more  absorbed  in  earning  their  bread 
than  in  affairs  of  state,  these  conditions  are  not  ful- 
filled, and  in  case  no  one  made  it  his  business  to 
expound  public  questions  or  advocate  a  definite 
solution  of  them  they  would  commonly  go  by  default. 

Moreover,  if  all  men  after  a  short  reflection  came 
to  the  same  conclusion  popular  government  would 
be  plain  sailing;  or  if  the  majority  tended  to  think 
precisely  alike  the  matter  would  be  simple  enough. 
But  in  fact  all  men,  or  even  the  majority  of  men, 
who  think  for  themselves  do  not  spontaneously 
reach  identical  conclusions.  Their  views  range 
naturally  over  the  whole  gamut  of  possible  solutions, 
and  they  can  unite  for  action  only  by  the  sacrifice 
of  a  portion  of  their  ideas.  The  process  of  forming 
public  opinion  involves,  therefore,  bringing  men 
together  in  masses  on  some  middle  ground  where 
they  can  combine  to  carry  out  a  common  policy. 


62  The  Function  of  Parties  [§  28 

In  short,  it  requires  a  species  of  brokerage,  and  one 
of  the  functions  of  politicians  is  that  of  brokers. 
Perhaps  it  is  their  most  universal  function  in  a 
democracy,  because,  in  the  caustic  language  of  Sir 
Henrys  ]Maine,  the  mincing  of  political  power  into 
very  small  morsels  naturally  makes  the  wire  puller 
the  leader.^  The  number  of  statesmen  who  strive 
to  carry  into  effect  a  personal  policy  of  their  own 
on  any  large  scale  by  leading  and  educating  the  com- 
munity is  very  small.  By  far  the  greater  part  of 
the  work  done  by  public  men  consists  in  ascertain- 
ing what  the  people,  or  some  fraction  of  the  people, 
want;  or,  to  put  it  in  a  less  invidious  way,  in  finding 
out  how  far  the  ideas  which  they  hold  themselves 
are  shared  by  the  bulk  of  the  voters,  how  far  the 
subjects  in  which  they  are  interested  are  ripe  for 
treatment,  and  in  what  way  they  can  be  popularly 
treated.  It  is,  indeed,  almost  a  truism  to  say  that 
the  success  of  a  public  man  depends  very  much  on 
his  ability  to  gauge  public  sentiment.  For  this  pur- 
pose the  professional  politician  —  meaning  thereby 
not  the  man  who  makes  a  living  out  of  politics,  but 
one  who  devotes  a  considerable  part  of  his  life  to  it 
—  has  a  great  advantage  over  the  amateur;  and  that 
explains  no  small  part  of  the  ineffectiveness  of  many 
reformers  in  America. 

It  is  by  no  means  always  easy  to  distinguish  the 
leader  from  the  broker,  the  statesman  who  really 
guides  the  nation  from  the  one  who  perceives  and 
gives  expression  to  a  general  sentiment  as  yet  inar- 
ticulate.    We  are  all  prone  to  admire  and  follow  the 

^  Popular  Gotemmeni,  pp.  29,  30. 


§  28]  Politicians  as  Brokers  63 

man  who  proclaims  a  principle  that  we  have  felt 
vaguely  but  never  formulated;  and  on  the  other 
hand  we  may  fail  to  recognize  the  influence  of  one 
who  leads  us  cautiously.  Throughout  the  earlier 
part  of  his  administration  President  Lincoln  was 
thought  by  many  ardent  people  to  be  waiting  for 
an  impulse  from  outside,  to  be  merely  watching  the 
trend  of  public  sentiment  and  following  it;  but  it 
is  now  generally  admitted  that  he  matured  his  own 
plans,  led  the  people  quietly  to  his  own  standpoint, 
and  acted  as  soon  as  they  were  ready  to  support 
him. 

To  say  that  a  species  of  brokerage  forms  a  large 
part  of  the  work  of  men  in  public  life  is  not  neces- 
sarily a  condemnation.  It  does  not  mean  that  they 
are  habitually  insincere  or  adopt  lines  of  policy  in 
the  righteousness  of  which  they  have  no  faith  them- 
selves. Some  compromises  they  make,  no  doubt, 
but  every  leader  must  do  that.  No  one  can  carry 
measures  in  exactly  the  form  he  would  prefer.  If 
he  could,  they  would  express  no  opinion  but  his 
own,  and  in  most  cases  that  would  be  defective.  It 
may  be  assumed  that  the  honest  man  in  public  life, 
when  he  listens  for  and  interprets  the  whispers  of 
popular  sentiment,  adopts  only  those  suggestions 
that  approve  themselves  to  his  own  conscience.  In 
doing  so  he  is  performing  a  service,  not,  indeed,  of 
the  highest  grade  in  statesmanship,  but  one  essen 
tial  to  popular  government  —  that  of  crystallizing 
a  mass  of  shapeless  ideas  into  the  general  public 
opinion  required  for  constructive  legislation  and 
political    action.      In    his   History    of  the    Relation 


64  The  Function  of  Parties  [§29 

between  Law  and  Opinion  in  England,  Professor  Dicey 
has  shown  how  fully  English  statesmen  of  both 
parties  have  acted  in  accord  with  the  prevail- 
ing public  opinion  of  the  day.  This  was  partly 
because  they  shared  that  opinion,  partly  because 
they  followed  it,  and  only  to  a  very  small  extent 
because  they  created  it. 

In  short  the  function  of  the  broker  is  as  needful 
for  political  as  for  commercial  life,  as  proper  and 
as  honorable.  The  really  serious  evil  comes  when 
the  brokerage  is  not  confined  to  formulating  public 
opinion,  but  degenerates  into  a  traffic  in  public 
measures  without  regard  to  any  public  opinion  on 
the  measures  themselves,  or  into  a  traffic  in  private 
legislation  and  in  appointments  to  public  office.  It 
is  these  last  things  that  have  brought  politics  in 
America  into  discredit.  It  is  in  these  that  the  boss 
plies  his  trade.  He  is  essentially  a  broker,  but  a 
broker  who  deals  in  private  benefits,  not  in  public 
opinion. 

29.   Parties  the  Means  by  which  Brokerage  is  Conducted 

If  politicians  are  largely  brokers,  party  is  the 
chief  instrument  with  which  they  work.  The  evolu- 
tion of  popular  government  has  made  political  par- 
ties a  permanent  phenomenon  in  public  life,  and 
while  many  have  denounced  them,  and  many  more 
have  used  them,  a  few  speculative  thinkers  have 
sought  to  account  for  them.  Their  existence  has 
been  ascribed  to  several  causes  mainly  of  a  psycho- 
logical or  economic  nature.  Rohmcr,  for  example, 
an   ingenious  writer  of  the  middle  of  the  last  cen- 


§29]  The  Cause  of  Parties  65 

tury,  attributed  thera  to  natural  diversities  of  tem- 
perament corresponding  to  the  different  states  of 
maturity  in  man  from  youth  to  old  age.^  Youths, 
and  men  who  retain  throughout  their  lives  a  youth- 
ful spirit,  are,  he  says,  by  nature,  radical.  Young 
men  are  naturally  liberal;  middle-aged  men  con- 
servative; and  old  men  absolutist  and  reactionary. 
More  recent  writers  have  ascribed  the  political  parties 
to  a  conflict  of  interest  between  the  different  forms 
of  property,  such  as  land  and  movable  capital ;  or 
traced  them  to  the  forces  that  make  for  indi- 
vidualism and  for  cohesion,  Gabriel  Tarde  sought 
them  chiefly  in  the  contrast  between  the  tendencies 
to  imitate  traditional  customs  and  to  imitate  new 
fashions  -;  while  Sir  Henry  Maine  looked  for  their 
origin  in  the  primitive  combativeness  of  mankind.^ 
Most  of  these  writers,  and  especially  those  mentioned 
first,  were,  like  all  political  philosophers,  much  af- 
fected by  the  conditions  prevailing  at  the  time  in 
their  own  country,  and  their  theories  are  mainly  an 
endeavor  to  explain  those  conditions.  We  may  ob- 
serve, also,  that  in  most  cases  the  explanation  is  based 
upon  the  subject  matter  or  principle  on  which  the 
parties  are  divided,  not  upon  any  inherent  necessity 
in  the  working  of  democracy  on  a  large  scale. 

Looking  at  the  present  state  of  affairs  in  England 
and  America,  the  two  large  nations  where  popular 
government  has  run  a  free  course  for  the  greatest 
length  of  time,  we  are  justified  in  saying  that  the 

^  Lehre   von  den   Politischen  Partcien.     Summarized   in   Beutschli's 
Charakter  und  Geist  der  Politischen  Parteien. 
*  Les  Transformations  du  Pouvoir,  pp.  143,  144. 
'  Popular  Government,  p.  31. 
5 


66  The  Function  of  Parties  [§29 

existence  of  parties  is  not  mainly  due  to  differ- 
ences of  temperament,  to  conflicting  interests,  or  to 
the  basic  forces  that  create  variations  of  opinion 
and  emotion  in  mankind,  but  that  they  are  rather 
agencies  whereby  public  attention  is  brought  to  a 
focus  on  certain  questions  that  must  be  decided. 
They  have  become  instruments  for  carrying  on 
popular  government  by  concentrating  opinion. 
Their  function  is  to  make  the  candidates  and  issues 
known  to  the  public  and  to  draw  people  together  in 
large  masses,  so  that  they  can  speak  with  a  united 
voice,  instead  of  uttering  an  unintelligible  babel  of 
discordant  cries.  In  short,  their  service  in  politics 
is  largely  advertisement  and  brokerage. 

In  a  small  community  where  people  can  all  meet 
together,  or  in  an  aristocracy  so  limited  that  the 
members  know  one  another,  such  a  service  is  much 
less  needed.  Under  those  conditions  parties  would 
probably  exist  only  while  there  was  a  sharp  issue 
to  divide  them.  They  would  fulfil,  in  a  way  they 
have  long  ceased  to  do,  Burke's  definition  of  a 
party  as  a  body  of  men  united  for  promoting  by 
their  joint  endeavors  the  national  interest  upon 
some  particular  principle  in  which  they  are  all 
agreed,  and  they  would  fade  away  when  the  issue 
was  definitely  settled.  This  actually  happened  in 
the  United  States  during  the  "Era  of  Good  Feeling" 
in  Monroe's  administration.  In  England  also  during 
the  eighteenth  century,  and  until  the  Reform  Act 
of  ISS'S,  the  parties  were  constantly  tending  to  break 
up  or  degenerate  into  mere  personal  intrigues,  a 
state  of  things  that  makes  the  political  history  of 


§  30]       The  Means  of  Concerted  Action         07 

the  time  very  hard  to  follow.  Whereas,  with  the 
extension  of  the  suffrage  and  the  growth  of  the  elec- 
torate, parties  in  both  countries  have  become  per- 
manent, and,  although  in  different  ways,  much  more 
highly  organized. 

30.   Parties  Enable  the  Voters  to  Act  in  Masses 

Perhaps  this  function  of  parties  can  be  put  more 
clearly  in  a  different  form.  Some  years  ago  a  promi- 
nent reformer  urged  that  it  was  the  duty  of  every 
good  citizen  to  go  to  the  polls  and  vote  for  the  man 
he  thought  most  fit  for  an  office,  whether  other 
people  proposed  to  vote  for  him  or  not.  A  more 
certain  method  of  insuring  the  victory  of  bad  candi- 
dates could  hardly  be  devised.  One  might  as  well 
say  that  every  good  soldier  ought  to  fight  as  he 
thinks  best  without  regard  to  the  manoeuvres  of  the 
rest  of  the  army.  Savage  warriors  come  nearer  to 
that  ideal  than  civilized  troops.  In  personal  con- 
duct, not  involving  cooperation,  each  man  may  do 
what  seems  best  in  his  own  eyes;  but  in  any  move- 
ment which  can  succeed  only  through  concerted 
action,  that  is  not  wholly  possible.  As  men  do  not 
spontaneously  agree  exactly,  the  harmony  that  is 
needed  can  be  reached  only  by  mutual  concessions. 
Here  the  services  of  the  broker,  and  in  public  affairs 
the  services  of  the  political  leader  as  a  broker,  are 
called  into  play.  Here  also  comes  in  the  function  of 
parties  as  a  means  of  bringing  about  a  workable 
accord. 

Independent  expressions  of  opinion  by  all  the 
citizens  on  the  person  to  be  elected  would  determine 


68  The  Function  of  Parties  [§30 

nothing.  They  might  suggest  the  general  trend  of 
thought,  but  they  would  not  as  a  rule  result  in  a 
majority,  or  even  in  a  very  large  minority,  for  any 
one  man.  Suppose,  for  example,  that  in  a  country 
where  parties  did  not  exist,  every  voter,  without  pre- 
vious consultation  of  any  kind,  were  to  write  on  a 
slip  of  paper  the  name  of  the  man  he  preferred  for 
chief  magistrate.  The  slips  when  counted  would 
usually  give  no  idea  of  the  real  preference  of  the 
nation.  Save  in  rare  instances  there  would  be  no 
approach  to  a  majority  for  any  one  man;  and  the 
name  that  received  the  largest  number  of  votes 
might  be  abhorred  by  the  vast  majority  of  the 
people.  Mr.  X  might  have  more  votes  than  either 
A,  B,  C,  or  D,  and  yet  the  supporters  of  these  four 
men,  who  comprise,  let  us  say,  three-quarters  of 
the  citizens,  might  prefer  any  one  of  the  four  to  X. 
That  is  the  reason  that  many  advocates  of  pro- 
portional representation  urge  the  adoption  of  the 
preferential  ballot;  and  it  is  one  of  the  reasons  why 
the  direct  primaries  established  by  law  in  many  of 
our  states  often  are,  and  must  be,  preceded  by  private 
meetings  or  conventions  which  designate  candidates, 
or  bj'  an  expensive  campaign  on  the  part  of  the 
aspirant  himself. 

In  the  case  of  measures  this  is  certainly  not  less 
clear.  Suppose  each  member  of  a  protectionist 
Congress  were  asked  to  submit,  without  consulta- 
tion, a  draft  of  a  tariff.  It  would  no  doubt  be 
obvious  that  a  large  majority  desired  protection  in 
some  form,  and  yet  a  plan  of  a  tariff  for  revenue 
only,  being  simpler,  might  be  sent  in  by  more  mem- 


§  31]  Parties  Frame  the  Issues  69 

bcrs  than  any  particular  protective  schedule.  In 
fact  it  is  not  improbable  that  no  two  schedules 
drawn  up  by  protectionists  would  be  precisely  alike. 
It  is  evident,  therefore,  that  collective  opinion  can 
be  ascertained  only  by  submitting  a  definite  propo- 
sition and  taking  a  vote  upon  it.  In  short  any  body 
of  men,  be  it  a  board  of  directors,  a  legislative 
assembly,  a  mass  meeting,  or  the  electorate  as  a 
whole,  can  express  itself  intelligently  only  by  answer- 
ing "Yes"  or  "No"  to  a  question  submitted  to  it; 
or  if,  as  in  the  case  of  most  elections,  the  matter  is 
to  be  determined  by  plurality,  it  can  only  select  one 
from  a  list  of  candidates  presented  to  it. 

31.   Parties  Frame  the  Issues  for  Popular  Decision 

If  then  any  large  body  of  men  can  express  itself 
only  by  voting  "Yes"  or  "No"  on  a  question  sub- 
mitted to  it,  someone  must  frame  the  question  or 
present  the  candidate.  In  a  body  of  moderate  size 
this  can  be  done  by  individuals,  but  in  a  very  large 
body  a  fair  chance  of  success  can  be  obtained  only 
by  insuring  a  considerable  support  in  advance,  and 
hence  concerted  action  is  indispensable.  Therein 
lies  the  main  utility  of  parties  in  a  popular  govern- 
ment. It  is  their  business  to  frame  the  issues  on 
which  the  people  are  called  upon  to  give  an  opinJbn, 
and  to  nominate  the  candidates  among  whom  the 
voters  make  their  selection.  No  doubt  they  exer- 
cise other  powers,  some  good  and  some  bad.  In  the 
United  States  they  have  been  highly  active  in  dis- 
tributing among  their  adherents  offices  that  ought 
to    have    no    party    character  —  an    abuse    as    yet 


70  The  Function  of  Parties  [§31 

checked  only  in  part  by  the  reform  of  the  civil 
service.  To  some  extent  also,  as  Professor  Henry 
Jones  Ford  pointed  out  years  ago,  they  help  to  bring 
into  harmony  the  branches  of  our  government  that 
were  made  wholly  independent  by  the  Constitution.^ 
But  it  would  seem  that  their  essential  function  in 
any  democracy,  and  the  true  reason  for  their  exist- 
ence, is  bringing  public  opinion  to  a  focus  and  fram- 
ing issues  for  the  popular  verdict.  Their  service  is 
like  that  of  the  counsel  who  draw  the  pleadings 
and  argue  the  case  for  the  jury.  In  performing  it 
they  are  exposed  to  the  temptations  that  beset  mem- 
bers of  the  bar,  without  the  strong  professional  safe- 
guards which  restrain  abuse;  but  it  must  not  be 
forgotten,  also,  that  they  are  open  to  the  exaggerated 
criticism  which  laymen  have  always  levelled  at 
lawyers. 

^  The  Rise  and  Growth  of  American  Politics. 


CHAPTER  VI 

THE  CONFUSION  OF  ISSUES 

When  we  speak  of  the  function  of  political  parties 
in  framing  the  issues  for  popular  decision,  we  must 
not  imagine  that  those  issues  are  by  any  means 
simple.  It  is  not  always  the  intention  of  the  party 
to  make  them  so  ;  nor  is  it  always  the  aim  of  a  lawyer 
in  arguing  before  a  jury  to  make  his  client's  case 
depend  upon  the  determination  of  plain  facts. 
Mr.  Bryce  has  remarked  that  opinion  is  the  thing 
with  which  American  party  organizations  are  least 
occupied;  that  the  object  of  a  platform  is  neither 
to  define  nor  to  convince,  but  rather  to  attract  and 
to  confuse;  that  it  is  a  mixture  of  denunciation, 
declamation,  and  conciliation.^  Nor  is  this  surpris- 
ing when  we  consider  how  politicians  are  always  say- 
ing that  they  need  an  issue  on  which  to  appeal  to 
the  people,  and  yet  are  constantly  evading  subjects 
deemed  vital  by  many  of  their  supporters. 

Such  a  condition,  however,  will  appear  less  incon- 
sistent with  the  statement  that  the  parties  frame 
the  issues,  if  we  distinguish  carefully  between  the 
main  question  which  the  people  must  decide  and 
the  grounds  of  their  decision.  The  former  is  usually 
perfectly  clear,  while  the  latter  are  often  painfully 
obscure.     What  was  the  main  question  the  people 

^  The  American  Commonwealth,  ed.  of  1910,  vol.  ii,  p.  334. 
71 


72  The  Function  of  Parties  [§32 

of  the  United  States  were  called  upon  to  decide  at 
the  presidential  election  of  1908?  It  was  whether 
Mr.  Taft  or  Mr.  Bryan  should  be  President  during 
the  next  four  years.  That  issue  was  framed  by  the 
Republican  and  Democratic  parties  in  nominating 
the  candidates,  and  was  settled  by  the  election 
beyond  the  shadow  of  a  doubt.  In  the  same  way 
the  British  voters  decided  at  the  election  of  1905 
that  they  were  for  the  time  weary  of  the  Conserva- 
tive administration  and  preferred  to  intrust  the 
government  to  the  chiefs  of  the  Liberal  party. 
This  also  was  purely  a  party  question,  and  was  sub- 
mitted to  the  judgment  of  the  electorate  by  the  two 
front  benches  in  the  House  of  Commons. 

32.   The  Motives  that  Determine  an  Election  are  Often  Obscure 

Turning  now  from  the  immediate  issue  to  the 
grounds  of  decision,  we  may  ask  whether  an  elec- 
tion really  decides  anything  beyond  the  choice  of  a 
man  for  an  office.  Sometimes  in  fact  it  does  not. 
Von  Hoist  declared  that  the  principal  argument 
in  the  presidential  campaign  of  1828  was  the  plant- 
ing of  a  hickory  pole  with  a  hurrah  for  Andrew 
Jackson.  Yet  the  example  shows  how  a  vague 
public  sentiment  may  involve  weighty  results,  for 
that  election,  far  from  being  a  mere  choice  of  a  par- 
ticular man,  became  one  of  the  turning  points  in 
American  history.  At  times,  however,  the  principles 
professed  by  the  two  parties  have  presented  so  little 
of  a  definite  issue  that  the  people  were  unable  to 
decide  anything  in  the  nature  of  policy;  and  on 
this  account  critics  of  our  institutions  charge  Ameri- 


§  32]       The  Motives  are  Often  Obscure  73 

can  parties  with  a  failure  to  educate  the  pubHc. 
But  such  elections  are  exceptional.  Some  momentous 
questions  are  usually  debated  between  the  parties, 
the  arguments  upon  them  helping  to  supply  the 
motives  that  determine  the  popular  verdict;  and 
yet  it  is  often  hard  to  know  how  far  any  one  of  these 
motives  was  decisive,  because  there  are  commonly 
a  number  of  them  operating  with  unequal  force  on 
different  individuals.  Unless  some  one  problem  of 
controlling  significance  —  like  the  free  silver  issue 
in  the  presidential  election  of  1896  —  has  dominated 
the  situation,  one  cannot  be  sure  that  the  public  has 
passed  a  judgment  on  any  specific  question. 

Sir  Henry  Maine  suggests  that  "the  devotee  of 
democracy  is  much  in  the  same  position  as  the 
Greeks  with  their  oracles.  All  agreed  that  the  voice 
of  an  oracle  was  the  voice  of  a  god;  but  everybody 
allowed  that  when  he  spoke  he  was  not  as  intelligible 
as  might  be  desired."  ^  The  difficulty  is  not  con- 
fined to  any  country  or  any  form  of  government. 
In  England,  where  of  late  years  a  doctrine  has 
grown  up  that  Parliament  ought  to  enact  no  drastic 
legislation  without  a  mandate  from  the  nation,  a 
general  election  always  gives  rise  to  a  dispute  about 
the  questions  it  has  decided.  Did  the  people  in  1900 
declare  for  anything  but  the  South  African  War.? 
At  the  election  of  1905,  which  brought  the  Liberals 
into  power,  did  the  people  pronounce  in  favor  of 
secular  schools,  or  Home  Rule  for  Ireland,  or  merely 
against  a  preferential  tariff.'*  Did  they  in  1911  ex- 
press an  opinion  on  anything  except  the  veto  of  the 

^  Popular  Government,  p.  185. 


74  The  Function  of  Parties  [§32 

House  of  Lords?  No  one  can  be  certain,  and  acri- 
monious debates  on  the  subject  habitually  take  place 
in  Parliament. 

An  extraordinary  situation  was  brought  about 
by  the  election  of  1910.  The  Lords  had  rejected 
the  budget,  and  the  dissolution  took  place  with  the 
distinct  purpose  of  determining  whether  they  should 
be  compelled  to  pass  it  or  not.  The  election  resulted 
in  a  majority  for  the  Liberals,  but  only  with  the 
aid  of  the  Irish  Nationalist  members  who  held  the 
balance  of  power.  Now  the  Nationalists  disliked 
the  provisions  of  the  budget  concerning  licenses  for 
the  sale  of  liquor,  and  if  the  issues  could  have  been 
completely  separated  they  would  have  rejected  those 
provisions,  which  were,  however,  deemed  vital  by 
the  bulk  of  the  Liberals.  Under  these  conditions 
the  desire  of  the  Nationalist  members  of  Parlia- 
ment to  sustain  the  Liberal  government  and  to 
checkmate  the  House  of  Lords  was  so  strong  that 
they  voted  for  the  budget  as  it  stood  and  forced 
the  Peers  to  accept  it.  No  doubt  in  so  doing  they 
had  the  approval  of  their  constituents,  who  may  be 
assumed  to  have  cared  less  about  the  liquor  clauses 
than  about  the  ultimate  policy  of  the  party.  But 
here  was  an  election,  turning  primarily  on  the 
budget,  which  seemed  to  show  that  a  majority  of 
the  constituencies  did  not  want  it  as  it  stood;  and 
yet  the  exigencies  of  party  politics  so  complicated 
the  issue  that  the  Lords  felt  constrained  to  pass  the 
budget  as  a  concession  to  a  popular  demand. 

A  general  election  is  of  necessity  a  judgment  upon 
the  parties  in  all  their  relations,  and  therefore  it  is 


§  33]  Parties  Lessen  Confusion  75 

impossible  to  isolate  the  different  motives  involved, 
such  as  the  personal  qualities  of  the  candidates,  the 
various  measures  proposed,  and  a  revulsion  of  feeling 
against  the  party  in  power.  One  cannot  separate 
these  things  so  as  to  attribute  the  result  to  any  one 
of  them  alone.  That  is  the  chief  reason  for  taking 
a  popular  vote  on  a  single  measure  by  means  of 
the  referendum  —  an  institution  whose  utility  and 
limitations  will  be  discussed  in  a  later  chapter. 

33.   But  the  Confusion  is  Less  than  if  Parties  did  not  Exist 

Although  political  parties  often  present  questions 
of  policy  to  the  electorate  in  a  complex  and  con- 
fused form,  they  do  at  least  present  the  sharp  issue 
of  a  choice  between  their  candidates  for  oflBce;  and 
even  the  result  of  the  election  as  a  decision  on  ques- 
tions of  policy  is  much  more  clear  than  it  would  be 
if  there  were  no  parties  at  all.  Suppose,  for  example, 
that  no  political  parties  existed  in  the  United  States, 
and  that  some  candidates  were  nominated  who 
stood  for  a  more  vigorous  national  control  of  cor- 
porations and  a  tariff  for  revenue  only,  others  who 
stood  for  a  similar  control  and  a  protective  tariff, 
others  for  prohibition  and  restriction  of  immigra- 
tion, and  so  on  through  all  the  possible  combinations 
of  political  creeds,  while  some  of  the  candidates 
stood  for  nothing  more  definite  than  personal  popu- 
larity. It  has  already  been  pointed  out  that  in  such 
a  case  no  single  candidate  would  probably  receive 
more  than  a  small  minority  of  the  total  vote,  and 
if  so  what  would  the  result  of  the  election  signify.'* 
What  would  it  tell  us  about  public  opinion  on  any 


76  The  Function  of  Parties  [§34 

of  these  questions;  and  if  we  could  compute  that 
opinion  by  an  ehiborate  process  of  adding  and  sub- 
tracting the  votes  cast  for  different  programmes,  what 
would  be  the  chance  that  the  persons  elected  shared 
that  opinion  on  a  considerable  number  of  points? 
The  confusion  would  certainly  be  far  greater  than  it 
is  today.  In  short,  the  function  performed  by  the 
parties  in  framing  the  issues  for  popular  judgment 
is  not  rendered  useless  by  the  fact  that  it  is  fulfilled 
very  imperfectly. 

34.   In  England  the  People  Pass  Judgment  More  on  Measures, 
in  the  United  States  More  on  Men 

We  have  seen  that  a  general  election  must  of 
necessity  involve  a  number  of  different  questions, 
and  sometimes  one  of  these  may  preponderate, 
sometimes  another.  We  have  known  elections  to 
turn  mainly  on  the  personal  character  of  the  candi- 
dates; we  have  knowTi  them  to  turn  on  one  over- 
mastering issue;  and  we  have  kno^Ti  them  to  be 
decided  by  general  party  tendencies  without  a 
marked  prominence  of  anything  in  particular.  In 
this  connection  it  may  be  interesting  to  note  the 
effects  of  different  forms  of  popular  government, 
and  especially  of  the  systems  at  work  in  England 
and  the  United  States.  If  we  were  seeking  for  an 
epigram  we  might  assert  that  under  the  English 
parliamentary  system  more  emphasis  is  laid  on 
policy,  in  America  more  on  the  men  selected.  Like 
all  epigraijis  this  contains  an  element  of  truth.  In 
England  the  party  that  has  a  majority  in  the  House 
of  Commons  must  hold  together  and  support  the 


§  34]         English  and  American  Parties  77 

cabinet  on  all  important  measures,  or  it  will  fall  and 
be  replaced  by  a  cabinet  of  the  opposition.  Con- 
versely the  cabinet  must  avoid  a  policy  that  divides 
its  followers  seriously.  Hence  a  general  election  is 
far  less  a  decision  on  the  merits  of  individual  can- 
didates for  Parliament  than  a  judgment  on  the 
national  party  leaders  who  stand  on  a  fairly  definite 
policy  —  a  policy  known,  not  solely  from  electoral 
promises,  but  from  the  positive  attitude  previously 
assumed  on  one  side  or  the  other  of  the  table  in  the 
House  of  Commons.  In  America  this  is  much  less 
true.  President  Roosevelt  and  Congress  were  by  no 
means  always  in  perfect  accord,  and  had  we  possessed 
the  English  system  of  cabinet  responsibility,  had  he 
occupied  the  position  of  a  British  prime  minister, 
Congress  would  have  been  compelled  to  follow  him 
wherever  he  chose  to  lead,  or  he  would  have 
been  forced  to  submit  to  its  wishes  or  resign.  In 
the  United  States  people  can  vote  for  a  President 
because  they  prefer  his  personal  character,  or  his 
political  views  in  the  aggregate,  to  those  of  his 
opponent;  and  then  can  vote  for  a  member  of  Con- 
gress who  differs  from  him  on  some  important 
question  of  policy.  In  1904,  for  example,  congres- 
sional districts  could,  and  did,  vote  for  Colonel 
Roosevelt,  and  elect  at  the  same  time  congressmen 
strongly  opposed  to  his  plan  for  increasing  the 
navy. 

In  England,  therefore,  the  people  at  a  general 
election  pass  judgment  more  directly  upon  the  whole 
policy  to  be  followed  during  the  next  few  years,  a 
fact  which  goes  far  to  explain  the  new  doctrine  that 


78  The  Function  of  Parties  [§34 

Parliament  ought  not  to  deal  with  matters  of  prime 
consequence  unless  it  can  be  considered  to  have 
received  a  mandate  for  the  purpose  at  the  election. 
But  on  the  other  hand  the  people  must  accept  one 
or  other  of  the  party  programmes  as  a  whole.  They 
cannot  support  the  Liberal  ministry  because  of  a 
desire  for  Home  Rule  in  Ireland,  undenominational 
public  schools,  or  disestablishment  of  the  Church 
in  Wales,  and  elect  members  of  the  House  of  Com- 
mons who  will  vote  for  preferential  duties  on  colonial 
products. 

In  the  United  States  the  popular  decision  on  ques- 
tions of  policy  is  less  direct  and  conclusive.  Often 
it  cannot  be  known  until  Congress  acts,  and  Con- 
gress divides  much  less  on  party  lines  than  Parlia- 
ment. Thus  in  England  the  parties  frame  the  issues 
for  popular  judgment  more  definitely  than  they  do 
in  America,  but  the  public  is  less  free  to  express  an 
opinion  upon  each  question  separately.  In  America 
the  parties  perform  that  function  less  fully,  and 
hence  a  general  election  has  less  the  character  of  a 
popular  mandate  to  the  successful  party  to  carry  out 
a  specific  group  of  policies.  This  fact  in  turn  helps 
to  explain  the  far  greater  prominence  of  the  personal 
element  in  American  politics.  In  England  the  selec- 
tion of  the  prime  minister  and  his  colleagues  is 
made  without  reference  to  the  electorate,  which 
has,  indeed,  no  strong  desire  to  be  consulted  on  the 
subject;  whereas  all  American  citizens  were  pro- 
foundly stirred  by  the  question  whether  Mr.  Taft 
or  Colonel  Roosevelt  should  be  the  Republican 
candidate  for  President  in  1912,  and  there  was  a 


§  35]         English  and  American  Parties  79 

vigorous  demand  that  the  matter  should  be  decided 
by  popular  vote  in  direct  primaries.  This  was  not 
due  chiefly  to  the  immense  power  wielded  by  the 
President,  but  in  the  main  to  the  fact  that  the  party 
was  not  solidly  united  in  its  policy.  It  comprised 
within  its  ranks  sharp  differences  of  opinion;  the 
same  differences  that  were  again  fought  over  imme- 
diately afterward  in  the  Democratic  National  Con- 
vention. The  prominence  of  the  personal  element  in 
the  determination  of  policy,  as  compared  with  the 
English  party  solidarity  on  public  questions,  makes 
the  American  government  in  this  respect  less  nearly 
a  direct  democracy  and  more  representative;  yet  if 
the  members  of  Congress,  or  of  a  state  legislature, 
reflect  accurately  the  views  of  their  constituents, 
their  action  on  any  particular  measure  may  be  more 
in  accord  with  public  opinion  on  that  question 
than  a  vote  in  Parliament  would  be.  The  difference 
is,  of  course,  merely  one  of  degree.  In  both  countries 
elections  turn  on  measures  only  in  part,  and  largely 
on  the  personality  of  candidates;  in  both  a  con- 
siderable amount  of  discretion  is  practically  intrusted 
to  the  men  who  are  elected.  We  are  dealing  only 
with  a  difference  of  emphasis;  but  that  difference  is 
not  without  importance,  and  has  a  direct  bearing  on 
the  topics  of  the  following  chapters. 

35.   Multiplicity  of  Parties  in  Continental  Europe 

Hitherto  we  have  spoken  as  if  there  were  only 
two  parties  to  be  considered;  and  that  is  in  fact 
the  normal  condition  in  England  and  America,  for 
although  in  both  nations  third  parties  have  arisen 


80  The  Function  of  Parties  [§  35 

from  time  to  time  they  have  usually  tended  to  dis- 
solve, or  there  has  been  a  process  of  absorption 
into  the  two  most  vigorous  bodies.  This  results 
from  the  practical  nature  of  politics  in  those  coun- 
tries, from  the  need  of  combining  to  support  a 
ministry-  or  elect  a  president,  and  from  the  sense, 
strong  among  a  people  accustomed  to  self-govern- 
ment, of  the  futility  of  voting  with  a  hopeless 
minority  simply  as  a  protest. 

On  the  continent  of  Europe  a  multiplicity  of  par- 
liamentary groups  has  been  the  rule.  There  the 
parties  are  based,  not  so  much  on  a  difference  of 
opinion  on  current  public  questions,  as  on  political, 
philosophical,  religious,  racial,  or  social  traditions. 
Sometimes  these  produce  irreconcilable  divisions, 
sometimes  they  do  not;  but  they  always  make  it 
very  difficult  for  a  man  to  transfer  his  allegiance 
from  one  party  to  another.  The  fact  that  an 
Englishman  voted  for  the  Conservatives  in  1895 
from  a  dislike  to  Home  Rule  was  no  reason  why  he 
should  not  vote  for  the  Liberals  in  1905  because  he 
dreaded  a  preferential  tariff  and  thought  it  the  more 
important  question  of  the  two.  A  Frenchman,  on 
the  other  hand,  who  believed  in  monarchy  on  prin- 
ciple could  hardly  have  abandoned  that  faith  because 
he  did  not  like  the  attitude  of  his  party  in  the  Drej''- 
fus  case.  He  might  stay  away  from  the  polls,  but 
he  could  not  without  apostasy  become  a  Republican, 
and  it  went  against  the  grain  to  vote  for  any  Repub- 
lican candidate.  This  appears  to  be  true  to  a  smaller 
extent  even  in  places  like  Switzerland,  where  party 
feeling  does  not  run  high,  where  it  is  based  on  political 


§  36]         Parties  in  Continental  Europe  81 

philosophy   rather  than   on   the   memory   of   bitter 
antagonisms,  and  where  there  are  no  irreconcilables. 

Such  a  difference  in  the  basis  of  parties  explains 
why  political  fluctuations  are  much  less  rapid  on 
the  continent  of  Europe  than  in  English-speaking 
countries.  The  frequent  alternation  in  office  of 
opposing  parties,  which  is  the  characteristic  phe- 
nomenon of  modern  popular  government  in  England 
and  in  the  United  States,  is  unknown  in  most  of  the 
continental  nations.  Except  in  countries  like  Spain, 
where  the  government  virtually  controls  the  elec- 
tions, a  sudden  shift  of  power  from  one  side  of  the 
house  to  the  other  is  rare,  and  the  gain  or  loss  of  a 
party  is  often  so  slow  that  it  must  be  attributed, 
not  to  any  considerable  change  of  opinion  among 
the  existing  voters,  but  to  the  gradual  advent  of  a 
younger  generation. 

36.   Two  Parties  a  Result  of  Political  Maturity 

Continental  writers  are  generally  convinced  that 
a  multiplicity  of  parties  indicates  greater  maturity, 
that  it  is  the  condition  to  which  all  nations  are 
tending.  We  may  admit  that  it  is  a  more  natural 
division  on  subjects  of  an  academic  character.  Save 
in  a  case  where  only  two  alternatives  are  possible, 
there  will  usually  be  more  than  two  schools  of 
thought.  If  a  problem  is  capable  of  three  or  four 
rational  solutions  some  men  are  likely  to  be  in  favor 
of  each  of  them;  and  where  the  question  is  one  of 
degree,  as,  for  example,  in  the  amount  of  control  to 
be  exerted  over  private  industry,  there  are  likely 
to  be  groups  of  men  ready  to  go  to  different  lengths. 

6 


8'2  The  Function  of  Parties  [§  36 

In  that  sense  a  multiphcity  of  parties  may  be  said 
to  express  the  mind  of  the  nation  more  accurately 
than  a  division  of  all  the  citizens  into  two  opposing 
camps.  But  government  is  a  practical  art  in  which 
the  currents  of  popular  opinion  can  be  but  imper- 
fectly reflected,  and  this  brings  another  factor  into 
the  problem.  We  have  already  seen  that  in  the  final 
decision  of  a  concrete  question  any  body  of  men  can 
consider  only  two  alternatives,  for  the  body  can  say 
only  "Yes"  or  "Xo"  to  the  proposal  submitted  to 
it.  At  that  moment  it  must  divide  into  two  oppos- 
ing parts,  and  this  is  true  not  of  specific  measures 
alone,  but  also  of  matters  like  the  choice  of  a  presi- 
dent or  the  support  of  a  ministry.  Switzerland  is 
the  only  country  which,  by  giving  seats  in  the 
administrative  board  to  representatives  of  the 
different  groups  of  opinion,  has  succeeded  in  avoid- 
ing almost  entirely  a  sharp  antithesis  between  gov- 
ernment and  opposition;  and  it  is  at  least  doubtful 
whether  the  Swiss  system  could  work  on  a  much 
larger  scale. 

Assuming,  as  the  most  cursory  observation  of 
contemporary  politics  certainly  indicates,  that  a 
great  democratic  country  cannot,  if  it  would,  avoid 
government  by  party,  the  question  arises  who  is  to 
select  the  ruling  party  and  thereby  determine  more 
or  less  definitely  the  policy  to  be  pursued.^  When 
there  are  only  two  parties  this  is  done  by  the  people 
at  a  general  election.  The  electorate  is  offered  a 
pair  of  alternatives  and  chooses  between  them.  The 
issue  is  Republican  or  Democrat,  Conservative  or 
Liberal;    it  is  essentially  a  case  of  "Yes"  or  "No." 


§  36]         Parties  in  Continental  Europe  83 

But  where  a  number  of  political  groups  exist  no 
question  is  presented  to  which  the  people  can  answer 
"Yes"  or  "No."  They  cannot  decide  which  of  the 
groups  shall  be  in  power,  because  that  will  depend 
upon  the  combinations  or  coalitions  formed  in  the 
representative  body  itself  when  it  meets.  In  France, 
for  example,  a  new  combination  of  groups,  involving 
a  profound  change  in  the  character  and  policy  of  the 
ministry,  has  often  taken  place  during  the  term  of  the 
parliament  and  without  recourse  to  the  electorate. 
With  a  multiplicity  of  groups,  therefore,  the  peo- 
ple play  a  less  direct  part  in  determining  the  party 
that  shall  rule  and  the  policy  that  shall  be  pur- 
sued than  they  do  if  only  two  competing  parties 
are  in  the  field.  The  existence  of  several  groups 
may  produce  a  legislative  body  that  reflects  the 
complex  state  of  the  public  mind  better  than  a 
division  into  two  parties,  and  that  may  or  may  not 
result  in  wiser  legislation,  but  it  does  not  give  to 
public  opinion  so  direct  a  control  over  the  govern- 
ment. We  may  observe  in  this  connection  a  growing 
stability  in  the  coalitions  of  groups  in  continental 
assemblies,  a  greater  tendency  to  cling  together  in 
blocks,  and  appeal  to  the  electorate  as  a  combined 
party  supporting  or  opposing  the  administration  of 
the  day. 

Of  the  large  nations  with  a  popular  form  of  govern- 
ment it  would  probably  be  safe  to  assert  that  Eng- 
land is  the  one  in  which  the  people  take  the  most 
direct  part  in  deciding  public  questions,  that  they 
do  so  to  a  less  extent  in  the  United  States,  and  still 
less  in  France  under  the  group  system  of  political 


84  The  Function  of  Parties  [§36 

organization.  One  might  suppose  that  their  direct 
share  in  government  would  be  least  of  all  in  Switzer- 
land, where  more  than  two  parties  exist  and  where 
the  administrative  body  is  not  wholly  partisan.  This 
would  be  true,  were  it  not  for  the  practice  of  taking 
a  popular  vote  on  particular  measures  by  means  of 
the  referendum  and  initiative;  and  that  is  no  doubt 
one  reason  for  the  adoption  of  those  institutions  by 
the  Swiss  republics. 

The  prevalence  of  a  number  of  groups  in  conti- 
nental countries  is  due,  not  to  any  preference  for 
representative  over  direct  democracy,  but  to  the 
fact  that  the  lines  of  political  cleavage  are  based 
upon  deep-seated  traditions  rather  than  upon  a 
difference  of  opinion  on  current  questions.  From 
that  point  of  view  we  may  fairly  ask  whether,  in 
large,  modern,  democratic  states,  a  division  into  a 
number  of  political  groups  may  not  be  the  result 
of  imperfect  homogeneity,  of  a  partial  evolution  of 
popular  government,  and  of  a  tendency  to  regard 
politics  more  from  a  theoretical  standpoint  than  as 
a  means  of  solving  actual  problems.  Although  the 
adherence  of  an  individual  to  his  party  is  in  all 
countries  largely  a  matter  of  tradition  and  of  a 
conception  of  the  general  fitness  of  things,  yet  in 
a  popular  government  that  has  developed  fully  the 
parties  themselves  ought  surely  to  exist  for  the 
attainment  of  practical  ends.  They  are  not  aca- 
demic bodies  for  the  expression  of  abstract  ideas, 
but  a  part  of  the  machinery  whereby  the  people 
formulate  and  give  effect  to  their  opinions  on  pub- 
lic questions.     "\Miile  everywhere  to  a  great  extent 


§36]  Result  of  Political  Maturity  85 

organs  outside  the  domain  of  positive  law,  they 
are  essentially  instruments  of  government;  and  it 
is  only  by  regarding  them  in  this  light  that  they 
can  be  fruitfully  studied  as  a  phenomenon  in  mod- 
ern democracy. 


CHAPTER   \  II 

THE  FALSIFICATION  OF  PUBLIC  OPINION 

If  parties  help  to  crystallize  public  opinion  by 
framing  the  issues,  they  tend  also  to  falsify  it,  and 
this  in  several  ways,  all  at  bottom  connected  with 
the  fact  that  the  whole  system  of  parties  is  an  arti- 
ficial grouping  of  men,  a  device  for  the  practical 
working  of  a  large  electorate. 

37.   Parties  Cause  a  Bias 

Every  voter  is  more  or  less  attracted  or  repelled 
by  some  political  party,  and  usually  to  such  an  ex- 
tent that  he  is  unable  to  form  an  entirely  unbiased 
judgment  either  on  questions  of  policy  or  on  the 
merits  of  candidates.  No  man  can  free  himself 
from  the  influence  of  associated  ideas.  They  are 
constantly  shaping  his  opinions  without  his  knowing 
it,  and  one  of  the  strongest  influences  of  this  kind  is 
that  of  membership  in  an  organized  body  of  men. 
It  is  among  the  primary,  hence  among  the  deepest, 
motives  in  human  nature.  It  is  a  part  of  the  gre- 
garious instinct  that  has  made  man  a  social  and 
civilized  creature  instead  of  a  solitary  animal.  It  is 
the  link  that  binds  the  most  savage  tribe  together, 
and  it  is  far  from  extinct  in  the  highest  state  of 
society.  When  it  appears  as  devotion  to  one's 
country,  we  laud  it  as  patriotism.  When  it  takes 
the  form  of  allegiance  to  party,  educated  people  in 

86 


§  37]  Parties  Cause  a  Bias  87 

America  are  apt  to  decry  it;  unless,  indeed,  the 
party  is  a  reform  association,  when  it  is  considered 
a  noble  expression  of  public  spirit.  When  it  comes 
in  the  shape  of  loyalty  to  a  church,  or  a  charitable 
or  educational  institution,  it  is  deemed  excellent; 
while  loyalty  to  a  business  corporation  is  popularly 
eyed  with  suspicion,  if,  indeed,  it  is  not  regarded 
as  a  cardinal  sin.  But  whether  for  good  or  evil  the 
influence  of  membership  in  an  organized  body  is  a 
force  to  be  reckoned  with,  and  its  effect  on  men's 
judgments  in  all  the  relations  of  life  is  too  obvious 
to  require  elaboration.  Doubtless  it  was  a  conscious- 
ness of  its  power  which  led  Rousseau  to  declare 
that  any  community  in  which  parties  existed  was 
incapable  of  a  true  common  will.^ 

In  American  municipal  government  this  force  has 
been  especially  disastrous,  because  the  allegiance  in 
that  case  is  to  a  party  which  has  no  proper  con- 
nection with  the  questions  to  be  decided.  For  a 
man  to  follow  blindly  in  national  politics  a  national 
party  that  he  has  learned  to  trust  is  not  wholly 
without  justification,  because  there  is  a  strong 
chance  that  it  stands  for  the  opinions  he  would  him- 
self hold  if  he  studied  the  issues  involved;  but  for 
him  to  obey  the  orders  of  a  city  boss  by  reason  of 
a  confidence  in  the  views  upon  the  tariff  professed 
by  the  national  leaders  of  the  party  to  which  the 
boss  belongs  has  not  the  same  excuse.  Hence  the 
outcry  against  party  politics  in  the  elections  of  our 
large  cities,  which  is  as  rational  as  it  has  usually 
proved  ineffective. 

'  Contrat  Social,  book  ii,  Chap.  iii. 


88  The  Function  of  Parties  [§38 

38.  Parties  Produce  Unnatural  Divisions 

Political  parties  falsify  public  opinion  in  another 
way,  because  they  do  not  correspond  accurately  to 
the  real  differences  in  thought.  All  party  organiza- 
tions contain  an  element  of  sham.  A  party,  like  a 
broker,  tries  to  simulate  a  larger  amount  of  agree- 
ment than  actually  exists.  There  may  be  bitter 
factional  fights  over  the  selection  of  the  candidate 
or  the  drafting  of  the  platform,  but  when  they  have 
been  adopted,  unless  matters  have  gone  so  far  as 
to  cause  an  open  rupture,  a  strenuous  effort  is  always 
made  to  restore  harmony,  to  bury  dissensions  and 
work  as  a  unit  for  the  election.  The  party  thus  pre- 
tends that  all  its  members  are  more  fully  in  accord 
than  they  are;  and  every  active  politician,  in  striv- 
ing to  win  the  victory,  magnifies  the  points  where 
he  approves  of  the  platform  and  passes  over  those 
where  he  does  not;  so  that  within  the  party  itself, 
and  consequently  in  the  verdict  of  the  electorate, 
public  opinion  is  somewhat  distorted.  There  is 
more  sacrifice  of  the  lesser  interests  to  the  greater, 
more  subordination  of  personal  conviction  to  party 
concord,  than  is  quite  consistent  with  the  real  public 
sentiment. 

Such  a  condition  is  due  to  the  unreality  of  party 
lines  of  cleavage,  which  are  drawn,  as  we  have  already 
observed,  on  the  assumption  that  men  are  divided 
by  nature  into  two  sections,  the  members  of  each 
section  holding  precisely  the  same  views  on  all 
public  questions.  If  this  were  true  we  should  have 
two  parties  with  different  policies,  each  wholly  at 


§  38]  Produce  Unnatural  Divisions  89 

unity  in  itself  and  separated  from  any  other  party 
by  a  broad  gulf.  According  to  the  common  Anglo- 
American  theory  of  two  parties,  one  in  power  and 
the  other  in  opposition,  that  is  the  case;  and  accord- 
ing to  the  continental  theory  of  a  multiplicity  of 
political  groups  it  is  true  of  each  group.  But  in 
fact  such  a  condition  does  not  prevail  anywhere. 
The  members  of  every  political  party  differ  among 
themselves  profoundly  on  some  questions,  and  on 
none  are  their  ideas  exactly  alike.  Men  are  not 
naturally  separated  by  hard  and  fast  lines  into  two 
or  more  compact  groups,  but  present  every  kind  of 
combination  of  opinions,  agreeing  with  some  persons 
on  one  issue  and  with  others  on  a  second. 

Many  single  questions,  moreover,  admit  of  a 
variety  of  solutions,  running  from  the  extremely 
radical  on  one  side  to  the  highly  conservative  on 
the  other;  and  instead  of  all  men  grouping  them- 
selves naturally  into  two  compact  bodies  favoring 
very  different  solutions,  as  they  ought  to  do  under 
the  theory  of  parties,  a  large  part  of  the  community 
is  in  fact  inclined  to  a  middle  course.  This  is  true 
not  only  of  a  single  subject,  but  even  more  of  the 
attitude  of  the  public  toward  the  general  progress 
of  political  thought.  Most  men,  in  short,  hold 
moderate  views,  inclining  to  neither  extreme,  and 
the  dividing  line  between  the  parties  usually  cleaves 
these  moderate  men  asunder,  including  some  in  one 
camp  and  some  in  the  other. 

A  diagram  may  help  to  make  the  matter  clear. 
If  we  represent  the  state  of  the  public  mind,  on  any 
question  capable  of  a  variety  of  solutions,  or  on  the 


90 


The  Function  of  Parties 


[§38 


general  trend  of  politics,  by  a  figure  whose  thickness 
at  any  point  indicates  the  number  of  people  naturally 
preferring  the  opinion  corresponding  to  that  point, 
the  figure  would  by  no  means  have  the  shape  of  a 
dumb-bell  or  figure  eight,  as  the  theory  of  parties 
would  lead  us  to  suppose.  On  the  contrary,  it  would 
be  thickest  near  the  centre,  not  far  from  the  very 
place  where  the  division  between  the  parties  comes. 
The  normal  curve  so  formed  is  known  to  scientific 
men  as  the  integral  of  probability. 

Figure  1  expresses  the  condition  of  public  opin- 
ion according  to  the  theory  of  two  parties;  figure 
2  according  to  the  theory  of  groups;  and  figure  3 
according  to  the  universal  scientific  principle  of  the 
distribution  of  variations  from  a  common  mean: 


Fig.    1 
Theory  of  Two  Parties 
Conservative     Liberal 


Fig.    2 

Theory  of  Several  Political  Groups 


Natural  State  of  Public  Opinion 
Conservative  Liberal 


§  39]  People  can  Say  only  "  Yes  "  or  "  No  "      91 

39.  People  can  Say  only  "Yes"  or  "No" 

Now  this  distortion  of  public  opinion  by  parties 
flows  from  the  fact  that  the  people  can  act  directly 
only  by  answering  "Yes"  or  "No"  to  a  definite 
question  presented  to  them;  or  if  they  act  by  a 
plurality,  instead  of  by  a  majority,  they  can  express 
a  more  general  preference  for  one  particular  proposi- 
tion or  candidate  than  for  any  of  the  others.  When 
an  election  is  held  for  a  public  oflSce,  or  a  vote  is 
taken  upon  a  referendum,  or  any  other  attempt  is 
made  to  elicit  public  opinion  by  a  ballot,  the  question 
presented  to  the  people  is  in  substance,  do  you  want 
this  man  or  that  man  for  the  office?  —  do  you 
approve  of  this  measure  or  not?  On  such  a  ques- 
tion the  people  must  divide  sharply  on  the  two 
sides  of  the  line,  although  many  of  them  might 
prefer  to  answer  a  different  question  which  is  not 
presented.  If  the  popular  decision  is  to  have  any 
intelligible  meaning,  it  must  be  in  the  form  of  a 
choice  between  definite  alternatives,  propounded  by 
someone;  and  in  a  large  modern  democracy  this  is 
normally  done  by  the  political  parties.  We  shall 
have  occasion  hereafter  to  consider  the  effort  to 
enable  any  other  body  of  citizens  to  present  measures 
to  the  electorate  by  means  of  the  initiative;  but 
we  may  remark  here  that  to  be  more  than  momen- 
tarily effective  a  political  organization  must  have  a 
certain  degree  of  permanence,  and  any  such  organi- 
zation which  is  permanent  is  properly  classed  as  a 
political  party. 

On  every  popular  vote  the  people  must  divide 


92  The  Function  of  Parties  [§40 

sharply  on  opposite  sides,  but  it  does  not  follow 
that  the  line  of  cleavage  will  be  the  same  on  all 
questions  submitted  to  them.  Xormally,  it  would 
not  be  so,  unless  the  ties  of  party  were  strong  enough 
to  create  a  strong  bias.  Yet  the  election  of  repre- 
sentatives and  public  officers  on  somewhat  artificial 
party  lines  is,  in  a  strictly  representative  democracy, 
the  only  authoritative  expression  of  public  opinion; 
and  even  where  such  a  system  is  tempered  by  the 
referendum  and  initiative,  election  is  by  far  the 
most  important  act  that  the  people  perform.  But 
again  it  does  not  follow  that  after  the  representa- 
tives have  been  chosen  they  will  differ  on  all  the 
measures  that  arise  as  they  were  divided  at  the 
polls;  that  the  Republicans  will  always  vote  one 
way  and  the  Democrats  the  other.  If  they  do,  they 
will  certainly  not  be  reflecting  the  popular  attitude 
correctly,  and  the  distortion  of  public  opinion  is 
obviously  likely  to  be  greater  than  if  they  consider 
each  question  on  its  merits  and  act  according  to 
their  personal  convictions.  Distortion  of  public 
opinion  from  this  cause  is,  therefore,  larger  in  the 
House  of  Commons  than  in  American  legislatures 
where  votes  are  cast,  as  a  rule,  far  less  on  party 

lines.  ^ 

40.   Influence  of  Moderate  Elements 

There  is  still  a  third  way  in  which  parties  falsify 
public  opinion.  This  is  by  giving  undue  weight, 
either  to  the  elements  that  are  most  aggressive  or 

1  See  A.  L.  Lowell,  The  Influence  of  Party  upon  Legislation  in  England 
and  America,  Annual  Report  of  the  American  Historical  Association  for 
1901,  vol.  i,  pp.  319-542;  summarized  in  the  writer's  Government  of 
England,  vol.  ii. 


§  40]       Influence  of  Moderate  Elements         93 

to  those  whose  attachment  to  the  party  is  least 
strong.  We  have  already  observed  that  opinions 
are  weighed  rather  than  counted,  and  that  happens 
within  a  party  as  well  as  in  the  whole  community. 
The  fraction  that  is  most  active  and  pushing  has 
far  more  influence  than  its  mere  numbers  would 
justify,  and  it  is  apt  to  be  an  extreme  fraction, 
because  extremists  are  usually  more  intense  in  their 
feelings  than  persons  of  moderate  views.  Yet  the 
moderate  man  will  often  cling  to  them  rather  than 
break  the  tie  of  party,  when  if  no  parties  existed  he 
might  vote  differently;  and  thus  the  country  may 
for  a  time  be  governed  by  what  is  really  a  small 
minority.  The  classic  example  of  this  is  found  in 
the  history  of  the  French  Revolution,  where  the 
control  of  public  affairs  passed  by  successive  stages 
into  the  hands  of  more  and  more  radical  groups, 
until  the  moderate  men  rose  in  disgust  and  put  an 
end  to  the  Reign  of  Terror  by  sending  the  Jacobin 
leaders  to  the  guillotine. 

In  a  long  established  popular  government  the 
tendency  of  a  party  to  be  ruled  by  an  extreme  wing 
is  usually  counteracted  in  some  measure  by  the 
temptation  to  give  great  weight  to  the  elements  in 
its  ranks  that  are  most  easily  detached,  these  being 
normally  the  more  moderate  elements.  In  a  coun- 
try, for  example,  like  England  or  the  United  States, 
where  there  are  habitually  two  principal  parties, 
the  members  in  each  who  are  nearest  in  accord 
with  the  other  are  more  likely  to  be  driven  into  it 
by  dissatisfaction  with  their  own  leaders  than  are 
the  extremists  whose  aversion  to  their  opponents 


94  The  Function  of  Parties  [§40 

is  much  stronger.  The  party  chiefs  are  therefore 
very  careful  not  to  offend  people  of  that  type,  some- 
times to  the  exasperation  of  men  of  sterner  mould. 
In  the  early  part  of  our  Civil  War  many  ardent 
Republicans  thought  that  Lincoln  paid  too  great 
heed  to  the  hesitation  of  his  more  timid  supporters 
who  dreaded,  first  a  violent  collision  with  the  South, 
and  later  a  drastic  policy  about  slavery.  In  the 
same  way  Mr.  Gladstone's  cabinet  in  1870,  out  of 
respect  to  WTiig  opinion,  did  not  go  so  far  towards 
free  public  non-sectarian  education  as  the  Non- 
Conformists  desired. 

Examples  of  cautious  action  due  to  this  cause 
might  be  multiplied  indefinitely,  for  the  condition 
is  perfectly  natural.  The  extreme  wing,  the  one 
farthest  from  the  opposing  party,  may  grumble  and 
scold,  but  it  is  highly  unlikely  to  join  the  enemy; 
whereas  the  men  who  stand  closest  to  the  oppo- 
sition pass  much  more  easily  over  the  line,  and 
must,  therefore,  be  carefully  conciliated.  Thus  in 
a  country  where  only  two  parties  exist  there  is  a 
normal  tendency  toward  what  the  French  call  gov- 
ernment by  the  centres.  This  is  a  healthy  condi- 
tion, because  it  makes  for  moderation,  for  stability, 
for  a  policy  that  comes  near  to  the  average  view 
of  the  whole  community,  and  hence  for  govern- 
ment by  public  opinion.  It  is  a  beneficial  offset 
to  the  other  tendency  toward  the  rule  by  men  of 
intense  and  extreme  convictions,  and,  if  it  falsifies 
opinion  within  the  party,  it  helps  to  prevent  party 
from  falsifying  the  opinion  of  the  people. 


§  41]        Influence  of  Extreme  Elements  95 

41.   Influence  of  Extreme  Elements 

Occasionally  the  wing  of  the  party  most  easily 
detached  is  not  moderate,  but  extreme.  That 
occurs  when  it  consists  of  men  who  care  more  for 
some  particular  object  than  for  all  the  other  prin- 
ciples that  hold  the  party  together.  In  order  to 
promote  their  ends  in  such  a  case  they  may  be 
willing  to  engage  in  a  triangular  fight,  or  even  to 
transfer  their  support  to  the  other  side,  which  may 
on  its  part  be  inclined  to  trade  with  them  for  the 
sake  of  getting  into  power.  By  this  process  the  ex- 
treme wing  can  sometimes  force  the  hands  of  the 
party  leaders  and  gain  an  influence  quite  out  of 
proportion  to  their  numbers,  thus  bringing  to  pass 
a  result  out  of  accord  with  true  public  opinion.  To 
some  extent  the  Labor  Party  holds  a  position  of 
this  kind  in  England  today.  It  is  for  most  purposes 
affiliated  with  the  Liberals,  and  it  has  certainly  no 
disposition  to  trade  with  the  other  side,  but  it  has 
often  nominated  an  independent  Labor  candidate, 
even  at  the  risk  of  giving  the  seat  to  a  Conservative. 
Both  Liberals  and  Conservatives  need  the  votes  of 
working  men  who  are  more  or  less  under  the  influence 
of  the  labor  leaders,  and  both  feel  constrained  to  ob- 
tain that  vote  by  concessions.  In  1906,  therefore, 
neither  party  dared  to  reject  the  bill  to  exempt  trade 
imions  entirely  from  suits  for  tortious  acts,  although 
it  is  not  improbable  that  the  general  opinion,  both 
in  Parliament  and  in  the  country,  if  not  distorted  by 
party  exigencies,  would  have  been  against  a  measure 
so  contrary  to  the  spirit  of  the  English  common  law. 


96  The  Function  of  Parties  [§42 

The  soundest,  although  by  no  means  the  universal, 
condition  of  parties  is  one  where  they  are  far  enough 
apart  to  stand  for  real  differences  of  policy,  and  yet 
sufficiently  controlled  by  their  moderate  elements 
to  be  fairly  close  together.  This  is  the  best  con- 
dition, because  it  is  one  that  brings  both  of  them 
near  to  the  political  centre  of  gravity  of  the  whole 
people,  neither  of  the  alternatives  offered  to  the 
voters  being  very  repugnant  to  the  average  man. 
In  such  a  case  the  parties  perform  their  function  of 
framing  issues  for  the  people,  and  yet  falsify  pubhc 
opinion  to  the  smallest  extent. 

42.  Parties  Prevent  Distortion  by  Popular  Vagaries 

If  political  parties  always  distort  public  opinion 
in  some  degree,  they  also  prevent  the  still  larger 
distortion  caused  by  sudden  waves  of  excitement. 
As  great  ecclesiastical  bodies  tend  to  fro^n  upon 
religious  excesses,  so  party  organizations  are  inclined 
to  check  political  vagaries.  They  are  essentially 
conservative,  setting  their  faces  against  new  experi- 
ments. For  good  or  for  evil,  the  \Miigs  in  America 
were  out  of  sympathy  with  the  Free-Soil  move- 
ment; and  four  decades  later  the  regular  Demo- 
cratic politician  did  not  like  the  Populists.  Sir 
George  Cornewall  Lewis  remarked  that  the  absence 
of  highly  organized  parties  enabled  a  powerful 
orator  to  sway  the  Athenian  Assembly  much  more 
readily  than  he  can  a  modern  legislative  body.  The 
division  of  the  latter,  he  tells  us,  into  parties,  accus- 
tomed to  discipline  and  guidance,  makes  it  less  ac- 
cessible to  sudden  appeals  to  emotion,  and  thus  gives 


§  43]      Parties  an  Obstacle  to  Despotism        97 

a  greater  ascendency  to  calm  and  prudent  counsels 
than  in  the  ancient  republics.^ 

43.  Parties  an  Obstacle  to  Despotism 

Connected  herewith  is  another  service  rendered 
by  parties,  that  of  enabling  the  people  to  hold  the 
government  in  check.  The  constant  presence  of  a 
recognized  opposition  is  an  obstacle  to  despotism. 
An  oriental  ruler  has  always  become  resistless  as 
soon  as  he  broke  the  armed  force  of  his  foes,  because 
there  has  been  no  peaceable  means  of  forming  or 
expressing  hostile  opinion.  There  has  been  no  man 
or  body  or  organ  for  discontent  to  rally  around, 
no  alternative  to  submission  but  insurrection;  and 
hence  a  pacific  population  has  been  ready  to  bear 
much  without  showing  signs  of  disaffection.  The 
same  thing  was  true  after  the  coup  d'etat  of  Louis 
Napoleon.  At  each  of  the  plebiscites,  in  which  he 
asked  the  people  of  France  to  ratify  his  assumption 
of  power,  there  was  and  could  be  no  real  expression 
of  public  opinion,  because  there  was  no  alternative. 
The  citizen  was  asked  to  choose  between  a  govern- 
ment that  he  might  not  approve  and  a  grim  spectre 
of  anarchy  or  civil  war.  No  man  who  cared  for 
law  and  order  could  hesitate.  Had  there  been 
another  party  in  the  state,  with  a  rival  programme 
that  could  have  been  quietly  carried  into  effect  if 
supported  by  a  majority  of  the  people,  the  result  of 
the  vote  might  have  been  different. 

A  similar  situation  in  a  milder  form  might  be 
produced  in  any  country  if  one  of  the  parties  were 

1  Influence  of  Authority  in  Matters  of  Opinion,  pp.  216-18. 
7 


98  The  Function  of  Parties  [§43 

to  disappear  altogether,  or  if  its  chances  of  victory 
were  permanently  hopeless.  The  existence  of  a 
party  of  opposition,  with  a  programme  fairly  within 
the  limits  of  a  possible  public  opinion,  is  a  bulwark 
against  the  tyranny,  not  only  of  a  despot,  but  also 
of  a  fanatical  popular  majority.  It  becomes  a 
rallying  place  for  sober  common  sense  when  a  policy 
is  carried  too  far.  It  is  ballast  for  the  ship  of  state 
and  it  forces  the  rulers  to  justify  their  conduct  in 
the  face  of  constant  criticism.  In  a  country  gov- 
erned by  two  parties  the  utter  decay  of  one  of  them 
is  a  peril  to  the  nation;  and  in  fact  it  is  a  misfor- 
tune for  the  other  party  also,  whose  members  in 
such  a  case  are  almost  certain  in  time  to  get  out  of 
hand  and  break  up  into  factions  that  fight  among 
themselves. 


CHAPTER  VIII 

THE  ABUSE  OF  PARTY 

In  America  party  government  has  been  for  a 
generation  the  subject  of  severe  criticism,  some  of 
it  quite  just  and  some  of  it  exaggerated.  We  are 
told,  for  example,  that  the  parties  are  in  fact  manipu- 
lated by  a  small  number  of  politicians,  and  this  is 
undoubtedly  true.  Government  in  every  land  and 
in  every  period  of  the  world's  history,  whether  of 
a  nation,  a  church,  a  business  enterprise  or  any- 
thing else,  has  been  habitually  conducted  by  a 
few  guiding  spirits  whatever  be  the  form  of  organiza- 
tion; and  that  will  continue  to  be  the  case  so  long 
as  men  differ  in  ability,  in  force  of  character,  and 
in  the  amount  of  effort  they  are  willing  to  put  forth 
to  prevail  in  their  opinions  and  their  desire  to  rule. 
In  the  case  of  our  political  parties  we  are  told  that 
the  men  in  control  manage  things  despotically,  with 
a  reckless  disregard  of  public  opinion;  and  at  the 
same  time  we  hear  constant  complaints  that  the 
leaders  have  their  ears  to  the  ground  listening  for 
popular  applause  instead  of  pursuing  courageously 
the  course  that  they  think  right.  Contradictory 
as  these  charges  may  be,  they  are  both  largely 
justified;  and  both  are  based  on  a  perversion  to 
improper  ends  of  perfectly  normal  functions. 


99 


100  The  Function  of  Parties  [§44 

44.   Need  of  Scientific  Study  of  Party  Government 

In  politics  Americans  are  a  little  prone  to  rely- 
on  righteous  indignation  as  a  substitute  for  scientific 
study.  Assuming  that  popular  government  is  a 
simpler  art  than  it  has  proved  to  be,  and  that  pub- 
lic opinion  when  roused  is  well-nigh  infallible,  they 
are  inclined  to  believe  that  institutions  can  easily 
be  devised  which  will  work  perfectly.  This  habit 
of  mind,  coupled  w^th  a  long-suffering  nature  due 
to  absorption  in  other  pursuits,  tends  to  produce 
periods  of  lethargy  followed  by  outbursts  of  disgust 
with  existing  institutions,  when  men  are  ready  to 
accept  as  a  panacea  any  plausible  suggestion  for 
reform.  The  remedies  proposed  may  be  salutary 
or  they  may  be  mischievous;  they  may  allay  or 
they  may  aggravate  the  trouble;  but  the  main 
difficulty  lies  in  the  fact  that  they  really  treat  the 
symptoms  and  not  the  causes  of  the  evil,  although 
their  advocates  are,  of  course,  firmly  convinced  that 
they  will  strike  at  the  root  of  the  matter. 

The  result  has  been  a  series  of  experiments,  each 
hailed  as  a  new  declaration  of  popular  independence, 
and  each  in  a  measure  disappointing.  Some  of 
them,  like  the  Australian  ballot,  are  excellent  so 
far  as  they  go,  but  have  not  succeeded  in  breaking 
down  seriously  the  power  of  the  party  machines  ; 
while  others,  like  the  conferring  of  great  power  upon 
the  mayors  in  cities,  have  so  largely  failed  to  purify 
politics  that  men  are  now  turning  to  radically  dif- 
ferent plans,  such  as  that  of  government  by  com- 
mission.    The  impulse  that  gives  popularity  to  a 


§44]  Need  of  Scientific  Study  101 

particular  reform  is  often  strengthened  for  a  time  by 
an  immediate  improvement  in  political  conditions. 
But  in  fact  the  first  effects  of  a  reform  are  not  a 
fair  test  of  its  permanent  value.  In  times  of  moral 
awakening  any  cure  for  drunkenness  will  reform  a 
number  of  drunkards,  for  at  such  times  many  men 
are  in  a  state  of  mind  to  be  cured  by  anything;  and 
in  the  same  way  a  change  in  political  institutions  is 
usually  followed  for  a  time  by  improvement,  because 
the  public  spirit  that  wrought  the  change  is  likely 
to  cause  the  election  of  good  men  to  office.  The 
real  test  does  not  come  until  the  enthusiasm  has 
faded  into  the  light  of  common  day.  Judged  from 
that  standpoint,  our  devices  for  reform  have  rarely 
fulfilled  the  expectations  they  awoke. 

The  difficulty  comes  from  a  failure  to  study 
politics  scientifically,  to  investigate  the  phenomena 
thoroughly.  It  is  much  easier  to  bring  a  railing 
accusation  against  men  or  institutions  than  to 
ascertain  how  far  they  are  a  natural  product  of  the 
conditions  in  which  they  exist.  To  the  scientific 
mind  every  phenomenon  is  a  fact  that  has  a  cause, 
and  it  is  wise  to  seek  that  cause  when  attempting 
to  change  the  fact. 

The  need  of  scientific  investigation  is  as  great  in 
the  case  of  parties  as  of  any  other  phenomenon  in 
politics.  Observation  of  modern  democracies  shows 
that  parties  in  some  form  are  almost  invariably 
present,  and  that  their  activity  and  persistence  are 
roughly  in  proportion  to  the  size  of  the  electorate. 
Hence  they  may  be  regarded  as  a  natural  result  of 
popular  government  and  must  be  studied  as  such. 


102  The  Function  of  Parties  [§  45 

American  reformers  have  often  complained  bitterly 
of  the  "machine,"  and  talked  as  if  party  organiza- 
tion were  in  itself  an  error,  partaking  of  the  nature 
of  sin.  Their  own  reform  movements  were  formerly 
sporadic,  carried  on  for  the  most  part  by  small 
bodies  of  men,  or  by  temporarv'  expedients  based  on 
spontaneous  ebullitions  of  feeling;  but  of  late  years 
they  have  learned  the  value  of  permanent,  concerted 
work,  and  some  of  the  most  effective  associations 
for  good  government  today  are  as  highly  organized, 
and  in  fact  as  completely  controlled  by  a  small 
band  of  leaders,  as  the  political  parties  in  the  places 
where  they  prevail.  ^Moreover,  the  present  effort 
of  reformers  is  not  to  destroy  party  organizations, 
but  to  legalize  and  regulate  them.  In  fact  one  of 
the  burning  issues  of  the  day,  that  of  direct  primaries, 
involves  a  modification,  no  doubt,  but  also  a  recog- 
nition and  sanction  of  party  organizations.  If, 
therefore,  we  assume  that  parties  are  inevitable,  the 
question  we  ask  ourselves  should  be,  not  whether 
they  are  a  blessing  or  a  curse,  but  how  they  can  be 
made  to  perform  their  proper  function  well,  without 
being  perverted  to  baneful  uses. 

45.   The  Professional  Politician 

The  perversion  of  political  parties  to  improper 
objects  is  closely  connected  in  America  with  the 
existence  of  professionals  who  make  a  living  out  of 
politics.  Men  of  this  type  have  not,  indeed,  the 
all-pervasive  influence  commonly  attributed  to  them. 
They  are  not  found  in  all  parts  of  the  country-;  but 
wherever  our  politics  are  unsavory,  one  may  be  fairly 


§45]  The  Professional  Politician  103 

certain  that  the  professional  politician  is  at  work. 
In  his  recent  suggestive  book  on  The  Promise  of 
American  Life,  Mr.  Croly  has  described  the  reasons 
for  the  rise  of  a  special  class  of  politicians.^  He 
points  out  that  according  to  the  theories  of  the 
Jacksonian  Democrats,  which  became  the  prevail- 
ing ideas  of  the  nation,  the  ordinary  citizen  was 
expected  to  take  an  active  interest  in  politics;  but 
that,  with  the  increasing  complexity  of  conditions, 
the  theory  ceased  to  work.  Commerce  and  industry 
on  a  large  scale  became  divorced  from  politics,  each 
of  them  tending  to  engross  the  whole  of  a  man's 
attention,  thus  giving  birth  to  a  special  professional 
class.  He  explains  how  "the  American  system  of 
local  self-government  encouraged  the  creation  of 
the  political  'Boss,'  because  it  required  such  an 
enormous  amount  of  political  business.  Someone 
was  needed  to  transact  this  business  and  the  pro- 
fessional politician  was  developed  to  supply  the 
need.  .  .  .  The  ordinary  American  could  not  pre- 
tend to  give  as  much  time  to  politics  as  the  smooth 
operation  of  this  complicated  machine  demanded; 
and  little  by  little  there  emerged  in  different  parts 
of  the  country  a  class  of  politicians  who  spent  all 
their  time  in  nominating  and  electing  candidates 
to  these  numerous  offices.  The  officials  so  elected, 
instead  of  being  responsible  to  the  people,  were 
responsible  to  the  men  to  whom  they  owed  their 
offices;  and  their  own  individual  official  power  was 
usually  so  small  that  they  could  not  put  what  little 
independence  they  possessed  to  any  good  use." 

1  Pp.  117-126. 


104  The  Function  of  Parties  [§45 

Although  much  keen  thought  has  been  turned  on 
the  boss  and  his  methods  of  operation,^  there  is  still 
abundant  opportunity  for  some  political  philosopher 
to  study  his  natural  history,  examine  the  real  extent 
and  limitations  of  his  power,  and  expound  more 
fully  his  relation  to  the  precise  conditions  in  which 
he  thrives.  If  his  life  is  chiefly  parasitic,  it  does 
not  seem  to  his  friends  vicious.  On  the  contrary 
his  influence  over  the  mass  of  his  followers  is  largely 
based  upon  their  belief  that  he  is  the  centre  of  a 
great  charitable  institution  which  ministers  to  their 
wants,  relieves  their  distress,  and  distributes  among 
them  the  favors  of  a  bountiful  public  providence. 
That  these  benefits  are  conferred  to  the  injury  of  the 
whole  community,  and  in  the  long  run  to  the  detri- 
ment of  most  of  the  persons  who  receive  them,  they 
do  not  see.  Nor  do  they  perceive  that  government  by 
favoritism  leads  inevitably  to  corruption,  and  that 
corruption  always  turns  to  the  profit  of  rich  and  un- 
scrupulous men  who  can  pay  for  the  favors  they  de- 
mand. The  alliance  between  the  boss  and  predatory 
wealth  is  as  natural  as  it  is  calamitous.  But  does  such 
a  condition  exist  because  the  people  in  a  boss-ridden 
community  prefer  bad  government,  or  because  public 
institutions  are  so  ill  adjusted  that  someone  must 
perform,  well  or  ill,  honestly  or  corruptly,  the  func- 
tions which  the  professional  politician  has  accjuired.'* 

^  See,  for  example,  The  Boss,  a  book  written  in  imitation  of  Machia- 
velli's  Prince,  under  the  pseudonym  of  Henry  Champernown  bj'  U. 
Mcfi.  Means  ;  and  The  American  Boss,  by  Francis  C.  Lowell  in  the 
Atlantic  Monthly  for  September,  1!)()0;  as  well  as  the  discussions  in 
Bryce's  American  Commonwealth;  Ostragorski'a  Democracy  and  the 
Organization  of  Political  Parties,  vol.  ii;  and  Hart's  Actual  Government 
in  the  United  States. 


§  46]        The  People  Attempt  too  Much        105 

One  thing  is  clear.  The  boss  does  not  act  mainly 
as  an  exponent  of  public  opinion  or  frame  the  issues 
therefor.  Unless  they  affect  his  power,  or  private 
interests  from  which  he  can  derive  a  revenue,  he 
leaves  such  matters  alone  if  he  can.  He  cares  little 
for  public  policy  or  legislation  relating  to  the  general 
welfare  so  long  as  he  is  allowed  to  pursue  his  trade 
in  peace;  and  he  deals  chiefly  in  things  that  public 
opinion  cannot  reach,  the  distribution  of  minor 
offices  and  the  granting  of  privileges  great  and  small 
which  the  public  can  hardly  follow.  He  is,  indeed, 
a  political  broker,  but  one  whose  business  relates  far 
less  to  the  subjects  of  a  genuine  public  opinion  than 
to  private  benefits. 

46.  The  People  Attempt  too  Much 

This  brings  us  to  another  point;  for  public  broker- 
age in  private  benefits  is  in  no  small  measure  due 
to  the  form  that  democracy  assumed  in  America. 
On  the  connection  between  the  enormous  amount 
of  political  business  our  system  entails  and  the  rise 
of  a  professional  class  of  politicians  Mr.  Croly's 
remarks  have  been  quoted,  and  they  are  certainly 
justified.  The  plain  fact  is  that  in  America  democ- 
racy undertakes  more  work,  tries  to  attend  to  more 
details  for  which  it  is  not  fitted,  than  in  any  other 
country  in  the  world.  The  excessive  burden  comes 
mainly  from  two  things:  the  great  number  of  tem- 
porary offices  and  the  system  of  special  legislation; 
and  both  are  derived  from  the  same  source,  the  dis- 
like of  the  people  to  intrust  public  duties  to  anyone 
but  their  direct  representatives  or  to  persons  who 


106  The  Function  of  Parties  [§46 

are  kept  in  touch  with  pubHc  opinion  by  constant 
fear  of  removal.  The  American  citizen  is  far  less 
attracted  by  the  idea  of  experienced  public  servants 
who  retain  their  positions  so  long  as  they  are  faithful 
and  efficient  than  he  is  repelled  by  the  dread  of 
bureaucracy.  A  natural  result  has  been  the  creation 
of  a  vast  number  of  elective  offices  and  the  principle 
of  rotation  in  all  offices.  But  a  not  less  natural 
consequence  is  the  inability  of  the  people  to  control 
either  the  selection  of  men  for  office  or  their  conduct 
after  assuming  their  duties.  It  is  a  simple  case  of 
being  paralyzed  by  trying  to  do  too  much.  Every 
man  of  affairs  knows  that  if  he  were  unwilling  to 
commit  discretion  in  his  subordinates,  if  he  should 
insist  upon  considering  all  the  details  himself,  he 
would  be  swamped  with  work,  he  would  be  unable 
to  see  the  forest  for  the  trees,  and  he  would  lose 
effective  control  of  the  general  policy  of  his  business. 
It  is  said  that  one  way  in  which  the  bureaucracy  in 
Russia  has  at  times  outw^itted  a  reforming  Tzar, 
anxious  to  take  an  active  part  in  administration, 
has  been  to  overwhelm  him  with  detail;  and  by  the 
same  process  the  American  democracy  has  placed 
itself  in  the  hands  of  the  professional  politician.  The 
growing  demand  for  a  short  ballot  is  a  recognition 
that  the  people  have  undertaken  to  elect  to  office 
more  men  than  they  can  judge  intelligently;  and 
it  is  a  step  towards  a  simplification  of  popular 
government  that  ought  to  be  carried  far. 

We  shall,  of  course,  be  referred  to  the  progress  of 
civil  service  reform,  which  has  taken  great  masses 
of   appointments  out  of  politics,   and  this  has  no 


§46]        The  People  Attempt  too  Much        107 

doubt  proved  a  vast  benefit  by  removing  from  the 
poHtical  arena  a  source  of  temptation  and  a  means 
of  corrupting  the  electorate.  But  the  movement 
has  as  yet  touched  elective  offices  or  positions  with 
discretionary  powers  very  little,  and  hence  has  not 
done  much  toward  lightening  the  burden  of  popular 
government,  which  is  still  far  too  great  for  any 
people  to  bear.  To  the  relief  of  members  of  Parlia- 
ment the  last  appointments  in  which  they  had  any 
voice,  those  of  local  postmasters,  have  within  a  few 
years  been  withdrawn  from  their  influence;  and  they 
have  thus  been  left  free  to  devote  their  whole  atten- 
tion to  public  questions.  This  is  all  that  people  in 
a  democracy  ought  to  do. 

Another  product  of  American  democratic  ideas 
has  been  the  vast  amount  of  special  legislation 
enacted  by  representative  bodies.  In  other  countries 
with  a  popular  government  matters  of  this  kind  are, 
to  some  extent  at  least,  removed  from  politics  by 
being  placed  primarily  in  the  hands  of  administra- 
tive officials  or  of  an  impartial  committee.  But 
in  the  United  States  an  attempt  is  made  to  bring 
them  under  popular  control  by  intrusting  them  to 
the  direct  representatives  of  the  people.  They  are, 
however,  so  numerous  and  so  complex  that  the 
public  cannot  efTectively  control  them,  and  the 
result  has  been  to  throw  them  into  politics,  to  make 
the  professional  politician  a  private  bill  broker,  and 
to  bring  the  promoters,  including  the  managers  of 
public  service  corporations,  into  the  political  arena. 
This  again  is  a  case  of  democracy  obstructing  its 
own  path  by  too  much  baggage. 


108  The  Function  of  Pcarties  [§46 

We  suffer  from  what  Marco  Minghetti,  writing  of 
Italy,  called  the  undue  interference  of  parties  with 
affairs  not  properly  within  their  province.  But  the 
parties  deal  with  them  because  the  people  attempt 
1  to  do  so.  If  the  people  will  elect  many  oflBcers 
someone  must  nominate  them,  and  that  is  the 
I  natural  function  of  parties.  If  the  public  prefer  to 
I  have  a  large  number  of  other  officers  appointed  on 
grounds  other  than  special  fitness,  experience  or 
automatic  tests  —  that  is  on  political  grounds  — 
the  parties  are  certain  to  take  a  hand  in  the  matter. 
If  democracy  demands  special  legislation  by  polit- 
ical bodies  professional  politicians  are  likely  to 
be  attracted  to  the  quarry.  The  parties  were  not 
formed  for  the  purpose  of  spoils  or  franchises,  but 
they  quite  naturally  took  upon  themselves  all  the 
work  to  be  done  by  direct  popular  agency.  The 
conscience  of  the  nation  has  been  aroused,  and  an 
improvement  in  the  standards  of  public  life  will 
bring  greater  purity  in  government;  yet  so  long  as 
the  people  as  a  whole  undertake  more  than  they  can 
attend  to,  some  individuals  will  do  it,  and  will  be 
under  a  strong  temptation  to  do  it  wrongly.  Must 
we  not  strive  to  reduce  popular  action,  and  with  it 
the  activity  of  political  parties,  to  those  matters  in 
which  there  can  be  a  real  public  opinion.^ 

We  are  told  that  the  cure  for  the  ills  of  democ- 
racy is  more  democracy,  but  surely  that  depends 
upon  the  disease  from  which  it  is  suffering.  To  tell 
a  merchant  whose  business  has  outgrown  his  old 
methods  of  personal  management  that  the  cure  for 
his  inability  to  supervise  it  is  more  supervision  on 


§  47]  Frontier  Conditions  109 

his  part,  that  he  ought  to  pay  greater  attention  to 
details,  might  be  the  advice  of  a  country  storekeeper, 
but  it  would  not  be  that  of  anyone  familiar  with 
administration  on  a  large  scale.  Such  a  person 
would  recommend  the  appointment  of  trustworthy 
permanent  agents  to  relieve  him  of  detail,  and  would 
add  that  if  he  had  in  his  employ  an  unusually  faith- 
ful and  capable  man  he  had  better  keep  him  as  long 
as  possible  and  make  it  worth  his  while  to  stay. 
The  cure  for  the  ills  of  popular  government  is  more 
attention  by  the  people  to  the  things  they  under- 
take, and  that  object  is  not  promoted  by  undertaking 
too  much.  There  is  a  limit  to  the  total  amount  of 
labor  the  whole  people  can  expend  on  public  affairs, 
and  that  amount  must  be  divided  among  the  dif- 
ferent matters  they  are  called  upon  to  consider.  A 
fraction  is  diminished  by  increasing  the  denominator. 

47.  Frontier  Conditions 

American  democracy  has  been  deeply  colored  by 
two  feelings:  one  an  early  aversion  to  what  it  con- 
ceived to  be  the  English  system  of  a  class  privileged 
to  rule;  the  other  the  distrust  of  special  qualifica- 
tions natural  to  a  simple,  homogeneous,  pioneer 
community  where  every  successful  man  must  be  able 
to  turn  his  hand  to  anything.  Until  our  own  day 
the  attitude  of  the  frontier  settlement  has  never 
been  absent  from  America.  It  began  on  the  Atlantic 
seaboard  and  travelled  slowly  across  the  continent. 
Its  sentiments,  reinforced  by  antipathy  to  anything 
deemed  aristocratic,  have  given  a  strongly  marked 
tone    to    our    conception    of    popular    government. 


110  The  Function  of  Parties  [§47 

That  conception,  although  defective  and  incomplete, 
was  formerly  not  inapplicable  to  the  actual  condition 
of  the  country,  but  its  shortcomings  have  grown  ever 
clearer  with  the  increasing  complexity  of  our  civiliza- 
tion, and  there  is  no  reason  to  suppose  that  they  will 
lessen  in  the  future.  We  are  governing  a  vast  and 
intricate  community  by  methods  suited  to  a  small 
and  simple  one.  The  people  must  realize  that  they 
cannot  administer  so  directly  as  in  the  past.  They 
must  find  out  the  limits  of  what  they  can  do,  and 
learn  to  commit  other  matters  to  persons  or  bodies 
competent  to  take  charge  of  them,  trustworthy  and 
so  far  as  possible  free  from  political  motives.  They 
must  learn  how  to  do  this  without  losing  control 
over  the  general  policy  to  be  pursued  or  abandoning 
an  effective  supervision  of  the  administration.  It 
is  hoped  that  in  the  later  chapters  useful  suggestions 
may  be  made  upon  these  subjects. 


Part  III 
Methods  of  Expressing  Public  Opinion 


Part   III 

Methods  of  Expressing  Public  Opinion 


CHAPTER   IX 

REPRESENTATION 

The  authoritative  methods  in  common  use  for 
expressing  pubHc  opinion  are  representation  and 
direct  popular  action;  and  these  two  forms  of 
giving  effect  to  the  judgment  of  a  people  require 
analysis  and  scrutiny. 

48.   An  Election  does  not  Always  Express  Public  Opinion 

All  representative  government  is  based  upon  the 
assumption  that  an  election  is  a  more  or  less  trust- 
worthy expression  of  public  opinion;  that  while  the 
persons  chosen  may  not  hold  precisely  the  same 
views  as  their  constituents  on  all  the  questions  that 
arise,  yet  they  will  reflect  the  general  tone  of  thought 
of  the  electorate  and  its  party  complexion  with  some 
approach  to  accuracy.  In  countries  expert  in  self- 
government  the  assumption  may  be  safe,  but  it  is 
not  so  everywhere.  In  Spain,  for  example,  the  cabi- 
net of  the  day,  whatever  its  politics  may  be,  habit- 
ually carries  the  elections  and  obtains  a  majority  in 
the  Cortes.     This  was  particularly  striking  in  the 

8  113 


114  Methods  of  Expressing  Public  Opinion  [§  is 

six  troublous  years  that  followed  the  revolution  of 
1868,  when  the  ministries  changed  rapidly  and  each 
of  them  in  turn,  whether  republican  or  monarchist, 
whatever  form  of  republic  it  might  prefer  or  who- 
ever it  might  desire  to  seat  upon  the  throne,  could 
always  appeal  with  a  certainty  of  success  to  the 
verdict  of  the  people.  Such  a  sudden  shifting  on 
the  most  vital  of  all  political  questions  obviously 
meant,  either  that  the  voters  had  no  settled  convic- 
tion, or  that  official  pressure  prevented  them  from 
expressing  it,  and  in  neither  case  was  an  election  a 
true  gauge  of  public  opinion.  The  frequency  with 
which  military  revolts  have  occurred  in  some  of 
the  Spanish-speaking  countries  is,  indeed,  explained 
by  the  fact  that  an  election  there  has  not  been  a 
faithful  expression  of  the  popular  will,  and  therefore 
was  not  to  be  treated  as  final  —  a  phenomenon  that 
suggests  grave  reflections  about  the  possibility  of 
introducing  truly  representative  institutions  rapidly 
among  a  people  unused  to  them.  Nor  is  a  condition 
of  this  kind  wholly  confined  to  states  in  which  pop- 
ular government  is  a  complete  novelty.  With  all 
the  experience  the  French  have  had,  one  may  still 
observe  how  great  an  influence  the  administration 
has  at  elections.  In  the  English-speaking  countries 
there  is  a  distinct  tendency  toward  a  reaction  against 
the  party  in  power,  commonly  called  the  swing  of 
the  pendulum,  while  in  France  the  opposite  is  true. 
Nevertheless  we  may  assume  that,  in  a  community 
fitted  for  self-government  and  accustomed  to  it, 
an  election  represents  with  fair  accuracy  the  opinion 
of  the  people.     But  that  statement  does  not  carry 


§  4.9]     Representation  of  the  Whole  Nation     115 

us  very  far.  Most  poHtical  generahzations  appear 
simple  enough  until  we  begin  to  inquire  into  their 
real  significance;  and  just  as  we  have  analyzed  the 
terms  "public"  and  "opinion,"  so  we  must  ask  our- 
selves here  what  we  mean  by  "the  people"  and  by 
"representation."  In  short,  we  must  try  to  form 
in  our  own  minds  a  perfectly  clear  conception  of 
what  people  are  represented  and  what  relation  the 
representative  bears  to  them. 

49.   Representation  of  the  Whole  Nation  and  of  Constituencies 

Various  contradictory  theories  of  representation 
have  been  advanced  in  more  or  less  systematic 
form.  One  pair  of  these,  which  meets  us  at  the 
threshold,  turns  on  the  question  of  who  are  the  peo- 
ple represented;  in  other  words  whether  each  mem- 
ber of  a  legislative  body  represents  the  nation  as 
a  whole,  or  only  the  particular  constituency  that 
elected  him.  Normally  the  ambassadors  assembled 
at  an  international  congress  represent  exclusively 
the  states  that  sent  them.  They  are  absolutely  sub- 
ject to  the  directions  of  their  home  governments; 
and  if  they  consider,  not  only  the  interests  of  their 
own  countries,  but  also  those  of  the  whole  family  of 
nations,  they  do  so  because  that  is  in  accord  with 
the  wishes  of  their  sovereigns.  A  tradition  of  this 
kind  growing  out  of  diplomatic  relations  among 
distinct,  or  only  partially  consolidated,  states  may 
survive  long  after  the  body  in  which  it  is  found  has 
become  a  national  institution.  The  most  familiar 
example  at  the  present  day  is  that  of  the  German 
Bundesrath  —  the    successor    of    the  old    Germanic 


116  Methods  of  Expressing  Public  Opinion  [§  49 

Diet  —  whose  members  are  still  compelled  by  a 
provision  of  the  constitution  to  vote  in  accordance 
with  the  instructions  of  their  respective  govern- 
ments. In  theory,  therefore,  these  members  still 
represent  the  component  states  of  the  German 
Empire,  not  the  Empire  as  a  whole.  But  it  is 
unnecessary  to  dwell  on  a  single  case  of  this  kind, 
for  history  is  full  of  similar  instances  and  their 
nature  is  well  knowm. 

When  we  pass  from  bodies  composed  of  the  dele- 
gates of  separate  governments  to  representative 
chambers  filled  by  popular  election,  it  may  be 
doubted  whether  any  example  can  be  found  today 
of  an  assembly  where  the  members  are  supposed, 
on  principle,  to  represent  their  constituencies  alone, 
in  contradistinction  to  the  countrv'  at  large;  or  on 
the  other  hand,  where  they  assume  in  practice  to 
represent  the  nation  as  a  whole,  without  regard 
to  their  constituencies.  Nowhere  do  they  consider 
themselves  under  an  obligation  to  follow  the  senti- 
ments or  interests  of  one  to  the  exclusion  of  the 
other.  Nowhere  would  a  representative  declare 
himself  free  to  disregard  altogether  the  national  wel- 
fare if  it  conflicted  with  that  of  his  constituents,  or 
the  welfare  of  his  constituents  if  contrary  to  that 
of  the  nation.  This  is  habitually  true  even  of  a 
body  that  expressly  represents  the  component  states 
of  a  federation.  It  is  as  true  of  the  American 
Senate  as  of  the  House  of  Representatives.  No 
member  of  either  branch  of  Congress  would  venture 
to  assert  openly  that  a  bill  was  injurious  to  the  nation, 
but  beneficial  to  his  state,  and  that  he  should,  there- 


§50]        England  and  the  United  States        117 

fore,  vote  for  it.  Nor  would  he  represent  faithfully 
the  opinions  of  his  constituents  if  he  stated  these 
facts  and  voted  against  the  bill.  He  would  contrive 
to  find  good  reasons  for  believing  it  advantageous 
both  for  the  nation  and  for  his  state. 

It  is  impossible  to  determine  whether  a  modern 
legislature  represents  the  whole  country,  on  the 
ground  that  each  of  its  members,  although  elected 
by  one  district,  holds  a  national  office;  or  whether 
it  does  so  because,  while  each  member  represents 
only  his  own  district,  they  reflect  in  combination 
the  opinions  of  the  country  as  a  whole.  Neither 
principle  can  be  asserted  absolutely  and  neither 
can  be  entirely  denied;  for  in  fact  the  representa- 
tive has  two  duties  and  performs  two  functions. 
He  does  not  keep  them  distinct  in  his  own  mind, 
and  fortunately  they  are  not  contradictory  enough 
to  oblige  him  to  do  so;  but  we  may  observe  that  it 
is  considered  a  mark  of  larger  patriotism  to  talk  in 
public  about  his  duty  to  the  nation. 

50.   Comparison  of  England  and  the  United  States 

Although  neither  of  these  views  prevails  anywhere 
to  the  exclusion  of  the  other,  a  different  emphasis 
is  laid  upon  them  in  different  places.  In  England, 
for  example,  there  is  in  general  a  greater  tendency 
than  in  the  United  States  to  lay  stress  upon  the 
national,  as  compared  with  the  local,  character  of 
a  representative,  —  a  fact  that  finds  expression  in 
the  willingness  to  elect  members  of  Parliament  who 
do  not  reside  in  their  constituencies  —  and  in  an 
article  published  in  the  Yale  Review  in  May,  1908 


118  Methods  of  Expressing  Public  Opinion  [§  50 

(pp.  48-49).  Professor  Max  Farrand  has  shown  that 
this  difference  of  conception  was  already  well  marked 
at  the  time  of  the  American  Revolution.  It  was,  per- 
haps, due  to  the  fact  that  in  New  England,  at  least, 
representation  was  in  early  days  a  device  for  col- 
lecting local  opinion  by  means  of  delegates;  and  in 
fact  long  after  the  Revolution  a  practice  still  sur- 
vived in  Massachusetts  of  passing  in  town  meeting 
votes  instructing,  or  requesting,  the  representatives 
in  the  General  Court  to  pursue  a  certain  course  of 
action. 

Whatever  the  origin  of  the  difference  may  have 
been,  there  is  no  doubt  that  several  factors  contribute 
to  maintain  it.  One  of  these  is  the  absence  in  Eng- 
land of  national  appropriations  for  local  improve- 
ments. Another  is  the  elaborate  system  of  private 
bill  legislation  in  Parliament  whereby  local  matters 
are  virtually  removed  from  politics,  whereas  in 
American  state  legislatures  they  engross  above  all 
else  the  activity  of  many  of  the  members.  A  third 
factor  is  the  system  of  cabinet  responsibility  which, 
by  concentrating  attention  on  the  battle  between  the 
two  front  benches  and  forcing  the  members  to  follow 
their  party  leaders  keeps  them  in  constant  touch 
with  national  party  issues  and  comparatively  free 
from  other  questions. 

The  English  system  involves  grave  dangers,  for 
the  eager  light  of  public  interest,  constantly  focused 
upon  the  warfare  across  the  table  in  the  House 
of  Commons,  constrains  the  leaders  in  an  unusual 
degree  to  seek  immediate  popularity.  The  fact 
that  the  party  in  power  can  be  held  to  absolute 


§50]        England  and  the  United  States        119 

responsibility  for  the  action  of  the  House  offers  a 
peculiarly  strong  inducement  to  cater  to  the  voters 
who  can  be  won  by  general  legislation;  the  fact 
that  the  Member  of  Parliament  is  under  a  tremen- 
dous pressure  to  vote  with  his  party  in  critical  divi- 
sions tends  to  make  personal  opinion  subservient 
to  political  expediency;  and  these  influences  work 
on  a  larger  scale  than  in  the  United  States,  where 
the  control  of  a  party  over  its  members  in  the  legis- 
lative body  is  much  less  effective. 

In  America,  the  chief  danger  is  of  a  different  kind. 
A  representative,  especially  in  the  state  legislatures, 
is  tempted  to  think  less  of  the  common  welfare,  of 
public  opinion  in  the  whole  community,  and  even 
of  the  general  policy  of  his  party,  than  of  the  way 
his  action  will  affect  the  particular  measure  his 
constituents  have  at  heart.  Hence  he  is  beset  by 
an  insidious  motive  to  trade  his  vote  in  return  for 
support  on  that  measure.  If  he  is  not  of  high 
character,  all  this  helps  also  to  lay  him  open  to  the 
other  influences  that  have  promoted  his  election, 
the  public  service  corporation  and  the  machine  boss. 
In  short,  the  faults  of  our  legislative  bodies  that 
bring  them  into  disrepute  are  closely  associated 
with  the  log-rolling  incident  to  local  and  private 
acts.^  In  theory  we  may  regard  our  representative 
as  intrusted  with  the  welfare  of  the  community  at 
large,  but  in  practice  he  is  far  too  closely  bound 
to  the  interests  of  his  particular  constituents.  Of 
course  no  country  has  a  monopoly  of  any  political 

^  Legislative  Shortcomings,  by  Francis  Cabot  Lowell,  in  the  Atlantic 
Monthly,  March,  1897,  pp.  368-369.     Cf.  Sect.  58,  irifra. 


120  Methods  of  Expressing  Public  Opinion  [§51 

defect.  All  nations  and  all  peoples  are  subject  to 
the  common  frailties  of  mankind.  We  are  speaking 
only  of  the  comparative  magnitude  of  different  evils, 
and  the  contrast  in  this  case  between  England  and 
the  United  States  is  noteworthy. 

A  Member  of  Parliament  represents  the  nation 
as  a  whole  largely  because  he  is  under  the  guid- 
ance of  the  cabinet,  or  of  the  leaders  of  the  oppo- 
sition who  expect  to  be  ministers  in  their  turn,  and 
the  present  or  prospective  rulers  of  a  country  must 
have  a  national  not  a  local  standpoint.  This  is 
true  also  of  a  chief  magistrate  elected  by  the  whole 
community.  He  may  be  the  tool  of  a  party,  a 
class,  a  sect,  or  even  of  some  special  interest,  but, 
save  under  very  peculiar  conditions,  he  can  hardly 
be  the  agent  of  a  district;  and  it  is  in  great  part  a 
feeling  that  American  legislative  bodies  represent  a 
mass  of  local  and  other  influences,  while  a  single  exec- 
utive officer  represents  the  community  as  a  whole, 
that  has  caused  the  increase  of  his  power.  Of  late 
years  the  mayors  of  American  cities  have  had  their 
functions  increased  by  law,  but  the  President  and  the 
governors  of  states  have  gained  authority  in  almost 
equal  measure  through  a  mere  change  in  public  sen- 
timent. Within  the  last  generation  they  have  used 
their  veto  power  much  more  frequently,  and  they 
have  undertaken  with  general  approval  a  far  more 
active  part  in  shaping  the  policy  of  legislation. 

51.   Remedies  Proposed 

For  the  tendency  of  legislative  bodies  to  represent 
a   collection   of   local   interests   rather   than   public 


§  51]  Remedies  Proposed  121 

opinion  some  remedies  have  been  devised  in  other 
lands.  Among  them  is  that  of  electing  a  number 
of  representatives  in  a  large  constituency,  instead 
of  having  each  one  chosen  in  a  separate  electoral 
district.  This  has  been  done  in  France  and  Italy 
without  effecting  any  radical  cure;  for  although 
the  local  interests  became  larger,  they  were  not 
effaced. 

Another  remedy  earnestly  advocated  in  France  ^ 
and  faintly  heard  elsewhere  may  be  noted  for  a 
moment.  It  is  a  suggestion  that  instead  of  repre- 
senting geographical  districts  the  members  of  the 
legislature  should  represent  distinct  interests;  that 
instead  of  being  elected  by  all  the  voters  in  a  certain 
area  they  should  be  elected  by  people  engaged  in 
definite  occupations.  Thus  we  should  have  repre- 
sentatives of  manufacturers,  of  bankers,  of  lawyers, 
of  farmers,  of  artisans,  and  so  on.  The  plan  illus- 
trates the  principles  we  have  been  considering,  for 
it  would  tend  to  eliminate  altogether  the  theory  that 
a  member  of  the  legislature  represents  the  nation 
as  a  whole.  Each  man  would  hold  a  brief  for  some 
special  interest.  All  would  be  for  a  faction  and  no 
one  for  the  state.  The  condition  would  be  worse 
than  excessive  representation  of  localities,  because 
the  aims  of  the  several  districts  are  not  of  necessity 
antagonistic,  as  those  of  the  different  occupations 
are  assumed  to  be  in  such  a  proposal.  The  sugges- 
tion is  contrary  to  the  principle  that  the  legislative 
body  ought  to  give  effect  to  public  opinion,  because 
the  true  conception  of  public  opinion  is  not  a  sum 

^  Charles  Benoist,  Le  Crise  de  I'Etat  Moderne. 


122  Methods  of  Expressing  Public  Opinion  [§  52 

of  divergent  economic  interests,  but  a  general  con- 
ception of  political  righteousness  on  which  so  far  as 
possible  all  men  should  unite. 

62.  Proportional  Representation 

The  device  of  proportional  representation  will 
naturally  occur  to  the  reader,  but,  while  intended 
to  correct  certain  defects  in  the  system  of  represen- 
tation, it  is  not  aimed  directly  at  the  evil  we  are 
now  discussing  —  the  predominance  of  local  inter- 
ests. The  attention  paid  to  it  has  fluctuated  very 
much,  and  of  late  years  has  revived.  In  the  course 
of  time  the  subject  has  given  rise  to  a  voluminous 
literature,  all  the  larger  because  the  advocates  of 
each  of  the  many  forms  proposed  are  often  inclined 
to  think  their  own  plan  quite  different  from,  and  far 
superior  to,  any  of  the  others,  although  the  general 
principles  are  in  most  cases  essentially  the  same. 
The  very  size  of  this  literature  would  make  it  im- 
possible to  treat  the  matter  adequately  here,  even 
if  more  closely  germane  to  the  questions  under 
discussion.  We  are  perforce  limited  to  pointing 
out  that,  in  the  forms  usually  suggested,  propor- 
tional representation  is  designed  to  prevent  the 
minorities  in  a  district  from  being  unrepresented, 
and  thereby  to  insure  that  people  holding  different 
opinions  shall  have  seats  in  the  legislature  in  some- 
thing like  the  ratio  of  their  strength  in  the  com- 
munity. This  is  the  more  important  where,  in 
order  to  avoid  the  pressure  of  local  interests,  con- 
stituencies electing  several  members  are  substituted 
for  single  electoral  districts,  because  the  larger  and 


§  52]  Proportional  Representation  123 

fewer  the  districts  the  greater  the  chance  that  con- 
siderable minorities  will  go  unrepresented. 

The  representation  of  minorities  can  certainly  be 
attained  by  the  system,  but,  in  view  of  the  tendency 
of  some  advocates  of  the  plan  to  claim  for  it  the 
benefits  of  a  panacea,  it  is  not  superfluous  to  observe 
that  disproportionate  representation  is  not  the  sole, 
nor  the  most  potent,  cause  of  legislative  defects. 
The  system  has  been  adopted  in  Belgium  and 
Switzerland,  but  although  it  has  had  its  best  trial 
in  those  countries,  it  has  not  yet  lasted  long  enough 
in  either  for  a  complete  determination  of  its  ultimate 
effects.  One  result  to  be  watched  with  care  is  how 
far,  like  other  complications  in  machinery,  it  will 
enhance  the  influence  of  the  machinist;  whether  it 
will  increase  the  power  of  wire-pullers  and  lessen 
the  opportunity  of  the  independent  voter  who  cares 
less  for  party  regularity  than  for  the  personal 
integrity  and  character  of  the  candidate.  In  Bel- 
gium, where  party  spirit  runs  high,  it  seems  to 
have  strengthened  party  discipline,  eliminated  inde- 
pendent candidates,  and  reduced  the  scratching 
of  tickets  at  elections.  Under  the  conditions  that 
prevail  there  this  is  considered  a  decided  advantage.^ 
Such  a  result  is  most  injurious  where,  as  in  Illinois, 
the  system  assists  only  a  single  minority  by  means 
of  the  limited  vote.  On  the  other  hand,  an  effort 
to  protect  a  large  number  of  minorities  may  result, 
as  in  the  case  of  the  English  school  boards  and  the 
legislature  in  Geneva,  in  so  splitting  up  the  vote 

1  Dupriez,  V Organisation  du  Suffrage  Universel  en  Belgique,  pp. 
174,  206-207. 


lt>4  Methods  of  Expressing  Public  Opinion  [§  53 

that  the  elected  body  represents  many  small  groups 
instead  of  the  public  at  large.  Partly  for  this  reason 
the  school  boards  in  England  have  been  abolished; 
and  to  reduce  the  number  of  small  groups  the  quota 
for  counting  votes  in  Geneva  has  recently  been 
raised.^ 

53.   The  Theories  of  Delegation  and  of  Personal  Judgment 

Another  pair  of  contradictory  theories  of  repre- 
sentation raises  the  question  of  the  relation  of  a 
representative  to  the  people.  One  theory  asserts 
that  he  is  a  mere  delegate  to  express  their  views; 
the  other  that  he  is  selected  for  the  purpose  of  using 
his  ovm.  judgment  on  the  matters  he  is  called  upon 
to  decide.  The  question  was  given  prominence  by 
the  celebrated  controversy  between  Burke  and  the 
electors  of  Bristol,  and  in  one  form  or  another  it  has 
been  cropping  up  ever  since.  From  time  to  time  a 
claim  has  been  made  by  some  local  political  organ- 
ization in  England  that  it  is  entitled  to  call  upon  its 
Member  of  Parliament  to  resign  when  he  ceases  to 
act  with  his  party.  During  the  course  of  the  South 
African  ^Yar  the  claim  was  put  forward  in  several 
cases,  and  on  that  occasion  its  validity  cannot  be 
said  to  have  been  universally  admitted  or  denied. 
A  symptom  of  the  same  trend  of  thought  is  seen  in 
the  demand  made  in  the  United  States  for  a  right 
on  the  part  of  a  majority  of  the  electorate  to  recall 
the  men  chosen  to  ofBce. 

The  proper  relation  of  a  representative  to  his 
constituents   is   akin   to   the   question   already   dis- 

*  Referendum  of  November  10,  1912. 


§  54]    Delegation  and  Personal  Judgment     125 

cussed;  that  is,  whether  he  represents  the  whole 
country  or  merely  a  single  district.  As  in  that  case 
we  can  find  examples  of  bodies  whose  members  are 
clearly  mere  delegates  appointed  to  vote  as  they  are 
directed,  and  we  may  refer  again  to  the  German 
Bundesrath  for  this  purpose.  But  in  a  legislature 
elected  by  the  people  neither  view  does,  nor  in  the 
nature  of  things  can,  wholly  prevail;  for,  on  the 
one  hand,  a  representative  is  presumably  in  general 
accord  with  the  opinions  of  his  constituents,  and  is 
in  fact  more  or  less  sensitive  to  their  desires;  while, 
on  the  other  hand,  if  he  has  self-respect  he  never 
feels  absolutely  bound  to  follow  their  directions  in 
all  matters.  He  is  no  doubt  selected  because  the 
voters  approve  of  his  attitude  on  the  leading  public 
issues,  but  special  questions  often  arise  on  which  he 
must  be  free  to  act  according  to  his  own  opinion. 

54.   Comparison  of  England  and  the  United  States 

Although  neither  the  theory  that  a  representative 
is  a  mere  delegate,  nor  that  which  regards  him  as 
a  person  selected  to  exercise  his  own  unfettered 
judgment,  is  anywhere  carried  to  its  logical  con- 
clusion, yet,  like  the  theories  of  local  and  national 
representation,  the  relative  importance  of  the  two 
principles  varies  in  different  countries;  and  the 
comparison  of  England  and  the  United  States  in 
this  respect  is  again  instructive.  One  might  sup- 
pose that  the  stronger  representation  of  local  inter- 
ests and  the  tendency  to  be  a  delegate  would  go 
together  on  one  side;  and  on  the  other  the  greater 
attention   to    broader   issues    with    more   personal 


126  Methods  of  Expressing  Public  Opinion  [§  54 

freedom  of  action.  This  would  be  so  if  the  effect 
of  national  political  parties  did  not  enter  into  the 
problem,  but  we  cannot  leave  them  out  of  account 
as  the  political  philosophers  of  the  eighteenth 
century  did  when  they  speculated  about  democracy 
without  an  opportunity  of  watching  it  in  action. 

A  Member  of  Parliament  is  less  free  than  an 
American  representative  to  follow  his  personal 
opinions,  because  he  must  support  the  leaders  of 
the  party  to  which  he  belongs  on  pain  of  seeing 
them  turned  out  of  office  and  being  himself  branded 
as  a  renegade.  Contrary  to  a  prevalent  impression, 
statistics  prove  that  in  Congress  party  lines  are 
much  less  strictly  drawn  than  in  the  House  of  Com- 
mons, and  still  less  strictly  in  the  legislatures  of 
almost  all  the  states.^  An  American  representa- 
tive is,  therefore,  more  free  to  exercise  his  owti 
judgment  on  the  questions  with  which  he  is  called 
upon  to  deal.  But  if  the  Member  of  Parliament  is 
less  at  liberty  to  act  as  he  pleases,  he  is  bound,  not 
to  his  constituents  as  their  delegate,  but  to  a  party 
that  stands  for  national  issues.  The  effort  to  exact 
from  a  candidate  pledges  on  subjects  of  all  kinds  is, 
no  doubt,  carried  farther  in  England  than  in  the 
United  States,  but  no  prudent  candidate  will  pledge 
himself  against  the  declared  policy  of  the  party 
leaders,  and  they  have  usually  taken  their  stand  on 
most  of  the  important  matters  that  have  a  serious 
chance  of  being  embodied  in  legislation. 

The  coercive  force  of  a  party  over  its  members 
is,  perhaps,  carried  farther  by   the  Labor  Party  in 

1  For  a  reference  to  these  statistics  see  the  note  to  Sect.  39,  supra. 


§  54]        England  and  the  United  States        127 

Australia  than  by  any  other  group  of  men  forming 
the  majority  in  a  representative  body  at  the  present 
day.  The  action  to  be  taken  is  determined  by  a 
caucus,  and  unlike  the  legislative  caucus  in  America, 
which  is  rarely  able  to  control  all  the  members  of 
the  party,  the  decision  of  the  Australian  caucus 
appears  to  be  rigidly  obeyed.  It  is  the  English 
parliamentary  system  made  democratic  and  carried 
to  its  logical  result,  a  system  where  the  ministry  is 
responsible  for  the  whole  policy  of  legislation,  and 
where  it  is  strictly  the  business  of  the  party  in  power 
to  govern  and  of  the  opposition  to  oppose. 

In  England  a  member  of  Parliament  habitually 
follows  his  party  leaders  except  in  the  rare  cases 
when  he  has  a  very  strong  conviction  that  their 
policy  is  wrong,  and  this  makes  his  course  plain. 
In  the  vast  majority  of  questions  he  has  only  to 
vote  with  the  whips  of  his  party;  but  the  American 
representative  is  placed  by  his  wider  freedom  in  a 
position  of  greater  difficulty  where  he  is  more  open 
to  criticism.  If  he  is  honest  and  sensible,  he  may 
be  assumed  to  agree  with  the  majority  of  his  con- 
stituents on  the  most  important  questions  about 
which  a  public  opinion  had  been  formed  at  the  time 
of  his  election.  But  how  is  he  to  act  on  matters 
that  arise  afterwards,  or  on  the  manifold  details 
of  legislation .f*  Is  he  to  follow  his  party;  is  he  to 
listen  for  the  whispers  of  popular  sentiment;  or  is 
he  to  act  as  in  his  own  judgment  is  best  for  the 
public  welfare,  taking  into  account,  of  course,  the 
need  of  concerted  action  to  achieve  any  result  and 
all  other  far-reaching  effects  of  his  conduct  .^^     If  he 


128  Methods  of  Expressing  Public  Opinion  [§  54 

is  to  do  the  last  he  will  no  doubt  make  mistakes 
for  which  he  can  throw  the  responsibility  on  no 
one  else;  and  he  certainly  will  not  always  conform 
to  public  opinion.  A  legislative  body  composed  of 
men  guided  by  that  principle  may  be  wiser  or  less 
wise  than  the  mass  of  the  people,  but  will  not 
invariably  reflect  their  views. 

These  two  theories  of  representation  —  the  duty 
to  carry  out  the  opinion  of  one's  constituents,  or 
to  act  on  one's  o^ti  best  judgment  —  are  to  some 
extent  inconsistent,  and  we  must  recognize  that 
fact  clearly  with  all  the  consequences  it  implies. 
We  must  remember  also  that,  under  the  American 
practice  of  voluminous  legislation  there  are  many 
subjects  upon  which  the  public  are  quite  incapable, 
for  lack  of  time  if  for  no  other  reason,  of  forming 
an  opinion.  In  fact  the  legislature  itself  has  not 
time  to  study  them  all  thoroughly,  for  we  have  over- 
whelmed our  representatives  as  well  as  the  people 
with  too  much  work.  We  demand  that  they  shall 
act  in  accord  with  public  opinion  on  matters  where 
neither  the  public  nor  the  legislature  itself  can  have 
a  real  opinion.  Such  matters  must  be  decided,  but 
a  discussion  of  the  methods  whereby  this  is  or  can 
be  done  must  be  reserved  until  we  come  to  the 
regulation  of  matters  to  which  public  opinion  cannot 
directly  apply. 


CHAPTER  X 

LOSS  OF   CONFIDENCE   IN   REPRESENTATIVE   BODIES 

55.   The  Rise  of  Modem  Legislatures 

Modern  representative  government  traces  its 
origin  to  the  mediaeval  device  for  taxing  the  differ- 
ent estates  and  giving  them  in  consequence  a  share 
in  the  direction  of  pubHc  affairs.  In  most  of  the 
larger  countries  of  Europe  the  institution  disappeared 
in  the  seventeenth  century  with  the  growth  of  an 
efficient  centralized  monarchy;  but  in  England  it 
had  strength  enough  to  endure,  and  the  House  of 
Commons  as  the  one  great  national  assembly  has 
furnished,  directly  or  indirectly,  the  model  for  almost 
all  the  elected  chambers  of  the  present  day. 

^ATien,  toward  the  end  of  the  eighteenth  century, 
and  during  the  first  half  of  the  nineteenth,  discon- 
tent with  autocratic  rule  and  a  desire  for  popular 
participation  in  politics  spread  over  western  Europe, 
representation  was  eagerly  seized  as  the  instrument 
needed  for  the  purpose.  It  was  generally  extolled 
as  the  greatest  of  political  inventions,  as  the  only 
means  whereby  popular  government  could  be  con- 
ducted on  a  large  scale.  To  its  absence  in  the 
ancient  world  was  attributed  the  small  size  of  the 
democracies  in  Greece  and  the  downfall  of  popular 
institutions  in  Rome.     It  was,  of  course,  resisted 

9  129 


130  Methods  of  Expressing  Public  Opinion  [§  56 

by  men  who  had  no  confidence  in  democracy,  but 
by  almost  all  those  who  believed  in  the  rule  of  the 
people  it  was  acclaimed  as  the  necessary,  if  not 
absolutely  flawless,  agency  for  liberty,  progress,  and 
justice.  The  turbulence  and  miscarriage  of  popular 
government  in  the  French  Revolution  did  not 
destroy  the  faith  of  democrats,  and  if  succeeding 
assemblies  in  France  were  unsatisfactory,  that  was 
ascribed  to  the  verv  limited  nature  of  the  electorate. 
Every  popular  agitation  on  the  continent  of  Europe 
took  the  form  of  a  demand  for  a  constitution  and  a 
parliament,  until  all  the  more  progressive  nations 
had  adopted  legislative  chambers  elected  by  popu- 
lar vote.  Thej^  were  to  be  the  harbingers  and  pledge 
of  a  new  era  for  mankind. 

56.   Recent  Distrust  of  Legislatures 

Many  countries  have  now  enjoyed  for  a  consider- 
able length  of  time  representative  legislatures  elected 
on  a  widely  extended  suffrage,  but  the  results  have 
often  been  disappointing.  The  political  millennium 
is  farther  off  than  when  enthusiasts  began  to  build 
the  road  to  it  and  saw  its  splendors  in  the  sky. 
Disillusionment  has  shed  a  cold  gray  light  over  the 
landscape,  while  men,  heedless  as  usual  of  the  in- 
exorable laws  of  nature,  are  seeking  for  a  scapegoat. 
Representative  assemblies  have  not  proved  senates 
of  unfailing  wisdom,  guided  only  by  desire  for  the 
public  good,  and  from  many  quarters  we  hear 
laments  over  their  deficiencies. 

The  contrast  between  expectation  and  results  is 
not,  perhaps,  so  sharp  in  the  United  States  as  in 


§  57]  Causes  of  Loss  of  Confidence  131 

some  other  places,  because  the  confidence  in  repre- 
sentative bodies  was  always  tempered  there.  When 
Americans  framed  their  own  governments  after  the 
Revolution,  they  foresaw  abuse  on  the  part  of 
legislatures,  and  strove  to  prevent  it  by  limiting 
their  power.  Jefferson  declared  that  they  were  the 
bodies  most  to  be  feared  and  would  remain  so  for 
many  years  to  come.  Many  years  have  passed,  and 
the  feeling  has  grown  more  pronounced.  Public 
confidence  in  them  has  manifestly  declined,  and 
with  increasing  rapidity  of  late,  until  it  almost 
seems  that  the  American  people  are  drifting  towards 
a  general  loss  of  faith  in  representative  government. 

57-    Causes  of  Loss  of  Confidence 

The  growing  distrust  of  legislative  assemblies  is 
due  partly  to  the  actual  defects  they  have  displayed, 
and  partly  to  popular  exaggeration  of  their  faults. 
One  of  the  most  universal  causes  of  complaint  is 
the  tendency  to  play  party  politics  instead  of 
regarding  purely  the  welfare  of  the  whole  com- 
munity. It  is  strange  that  anyone  with  ordinary 
perception  of  human  nature  should  not  have  antici- 
pated this;  but  the  earlier  democrats  were  notori- 
ously blind  to  the  forces  that  give  rise  to  parties  in 
politics,  and  like  reformers  in  all  ages  they  assumed 
that  their  principles  would  bring  about  a  change  in 
the  character  of  public  men. 

Bad  as  the  results  of  the  tendency  to  play  politics 
often  are,  they  cannot  be  attributed  wholly  to  evil 
motives.  Everyone  who  tries  to  work  effectively 
with  other  men   recognizes  the  need  of  concerted 


13'-2  Methods  of  Expressing  Public  Opinion  [§  57 

action  and  knows  that  to  achieve  it  he  must  keep 
those  with  whom  he  is  associated  united  in  a  com- 
mon cause.  Even  for  a  good  man  it  is  not  easy  in 
the  heat  of  the  fray  to  judge  the  means  employed 
at  their  true  value;  for  the  battle  often  becomes 
engaged  over  a  point  that  appears  to  the  com- 
batants more  important,  and  to  the  spectators  of 
less  moment,  than  it  really  is.  To  a  man  who 
believes  sincerely  that  the  prosperity  of  the  nation 
is  bound  up  with  the  success  of  his  party,  the 
manoeuvres  of  politics  are  apt  to  assume  an  undue 
prominence;  and  if  this  is  true  of  a  man  with  high 
conceptions  of  duty,  it  is  still  more  true  of  the  ordi- 
nary man  in  whom  the  excitement  of  the  struggle 
is  liable  to  overshadow  greater  ends. 

The  tendency  of  representative  assemblies  to 
play  politics  exists  everywhere;  and,  as  is  often  the 
case,  the  outcries  against  it  are  not  loudest  where 
it  is  greatest,  but  where  it  is  most  out  of  place. 
Grand  tactics  in  party  warfare  are,  perhaps,  dis- 
played on  the  most  comprehensive  scale  in  the 
British  House  of  Commons,  but  they  excite  little 
reprobation  because  the  motives  are  obvious  and 
rational.  Party  politics  play  a  considerable  part 
and  provoke  as  a  rule  more  hostile  comment  in 
the  continental  assemblies  with  their  divisions  into 
many  groups.  They  are  prominent  in  Congress 
also,  but  are  less  fiercely  condemned  there  than  in 
the  state  legislatures,  although,  save  in  the  case  of 
the  New  York  Assembly,  party  politics  are  a  far 
smaller  factor  in  the  legislatures  of  the  states  than 
in   Congress   or   in   almost   all   other  representative 


§  58]       The  Pressure  of  Local  Interests        133 

bodies.^  The  reason  for  the  severe  criticism  of  the 
action  of  parties  in  American  state  legislatures  is 
its  general  lack  of  justification.  The  parties  are 
divided  mainly  on  national  issues  which  have  no 
connection  with  the  ordinary  legislation  of  the 
state,  and  hence  manoeuvres  for  party  advantage 
are  foreign  to  the  object  the  legislatures  are  designed 
to  serve.  This  is,  indeed,  the  strongest  argument 
for  withdrawing  from  them  the  election  of  United 
States  senators,  for  that  throws  them  almost  inevi- 
tably into  the  vortex  of  national  politics.  Political 
parties  have  even  less  justification  in  municipal 
government  where  national  politics  have  no  proper 
place,  and  where  their  presence  has  fostered  political 
abuses  of  the  worst  form. 

58.   The  Pressure  of  Local  Interests 

Another  defect  of  our  legislatures  is  the  prominence 
of  local  interests  with  the  consequent  temptation 
to  log-rolling.  The  man  who  is  sent  to  the  legisla- 
ture from  the  town  of  Southfield  chiefly  in  order  to 
secure  an  act  for  a  dam  on  the  Quinnebet  River  is 
in  a  false  position.  He  meets  a  representative  of 
the  large  city,  a  very  sensible  person,  who  appreci- 
ates quickly  the  desire  of  the  inhabitants  of  South- 
field  for  the  dam,  and  tells  him  that  the  city  people 
are  very  anxious  for  the  benefits  that  will  come  from 
the  grant  of  a  franchise  for  a  street  railway;  and 
so,  perhaps  deliberately,  perhaps  unconsciously,  he 

'  See  A.  L.  Lowell,  "Party  Votes  in  the  House  of  Commons,  in 
Congress,  and  in  the  State  Legislatures,"  in  the  Annual  Report 
of  the  American  Historical  Association,  1901.    Vol.  I,  pp.  319-542. 


134  Methods  of  Expressing  Public  Opinion  [§  59 

trades  his  vote  on  the  franchise  for  a  vote  on  the 
dam.  He  knows  nothing  about  the  merits  of  the 
franchise.  How  can  he.^  There  are  such  a  multi- 
tude of  these  bills  and  people  make  such  contra- 
dictory statements  about  them.  His  new  friend, 
who  knows  all  about  it,  tells  him  that  the  opposition 
to  the  bill  is  worked  up  by  a  rival  interest.  Some 
years  later  there  is  an  investigation,  and  he  learns 
that  the  grant  of  the  franchise  was  scandalous. 

This  subject  has  been  discussed  in  the  preceding 
chapter,  and  it  is  enough  for  our  purpose  to  point 
out  that  since  local  matters  cannot  ordinarily  be 
the  subject  of  general  public  opinion,  and  since  they 
are  in  practice  too  numerous  for  a  real  opinion  on 
the  part  of  the  legislature  as  a  whole,  they  ought, 
so  far  as  possible,  to  be  decided  by  the  locality 
concerned,  or  placed  in  the  hands  of  an  adminis- 
trative body  or  a  committee  that  will  act  impartially 
and  apply  to  each  case  principles  established  by 
general  legislation. 

59.   The  Pressure  of  Private  Interests 

A  tliird  defect  arises  from  the  action  of  private 
interests,  at  the  present  day  mainly  of  a  corporate 
nature.  Direct  conscious  corruption,  the  sale  of  a 
vote  for  cash,  is  probably  less  common  than  it  is 
often  supposed  to  be.  When  it  occurs,  the  fault 
lies  primarily  with  the  electorate  for  choosing  dis- 
honest men  who  are  usually  perfectly  well  known 
to  be  untrustworthy.  No  honest  man  is  corrupted 
by  an  open  bribe  against  his  will.  The  fable  of 
the  French  deputy  who  harangued  his  constituents 


§60]  The  Lobby  1S5 

about  the  demorahzing  condition  of  the  Chamber, 
and  told  them  the  atmosphere  there  was  so  corrupt 
that  even  he  did  not  escape  entirely  unscathed,  is 
very  well  as  a  joke  because  it  was  a  confession  of 
his  own  lack  of  character. 

The  less  transparent  forms  of  influence  are  more 
common  and  more  dangerous,  for  the  well-inten- 
tioned but  inexperienced  legislator  may  be  quite 
unconscious  of  the  way  in  which  his  opinions  have 
been  warped.  The  fact  that  a  corporation  has 
given  his  near  relative  a  good  position,  or  has  rendered 
his  friend  some  service,  may  prejudice  him  in  its 
favor  without  his  realizing  it.  This  is  particularly 
true  when,  not  being  on  the  committee  to  which 
the  bill  is  referred,  he  is  not  compelled  to  hear  the 
evidence,  and  has  neither  the  time  nor  the  knowledge 
needed  to  study  the  question  for  himself.  The 
force  that  can  be  brought  to  bear  by  the  enormous 
pay-rolls  of  great  corporations  is  prodigious,  and  in 
some  cases  it  has  been  used  to  help  a  party  boss  as 
the  price  of  political  services.  In  addition  to  the 
public  offices  in  his  gift,  a  boss  has  often  been  able 
to  find  places  for  his  dependents  by  recommending 
them  to  the  kindly  consideration  of  public-service 
corporations.  This  is  a  link  between  these  bodies 
and  the  boss  which  increases  the  power  of  both; 
and  where  it  exists  it  is  an  evil  exceedingly  hard  to 
combat. 

60.   The  Lobby 

The  lobby  opens  another  channel  for  private 
influence.  Unfortunately  the  term  includes  many 
different  operations,  from  those  that  are  perfectly 


136  Methods  of  Expressing  Public  Opinion  [§  60 

proper  to  rank  bribery;  and  the  very  confusion 
caused  by  the  vagueness  of  the  word  presents  an 
obstacle  to  applying  an  effective  remedy  for  what 
is  wrong.  So  far  as  lobbying  at  the  legislatures 
means  employment  of  counsel  to  argue  publicly 
before  a  committee,  it  is  free  from  objection.  In 
fact  it  is  an  important  aid  to  wise  and  just  legis- 
lation. But  when  lobbying  means  the  personal 
solicitation  of  individual  legislators  it  has  quite  a 
different  significance,  even  when  there  is  no  trace 
of  actual  corruption.  It  is  an  attempt  to  catch  the 
member  alone  and  persuade  him  in  private  by 
arguments  that  might  be  easily  refuted  by  the  other 
side. 

Clearly  in  those  matters  on  which  opinion  cannot 
readily  be  formed  by  current  public  discussion, 
where  a  careful  weighing  of  evidence  is  needed,  it 
is  important  that  the  members  should  be  placed 
in  a  judicial  attitude  and  surrounded  so  far  as  pos- 
sible by  the  safeguards  that  experience  has  proved 
essential  in  judicial  proceedings.  What  confidence 
should  we  have  in  the  verdict  of  a  jury  if  the  parties 
were  allowed  to  interview  the  several  jurors  in 
private;  and  why  should  we  put  greater  reliance 
on  the  decision  of  legislators  if  this  is  almost  their 
only  source  of  information.'  So  long,  however,  as 
the  legislator  is  called  upon  to  deal  with  vast  num- 
bers of  bills  that  cannot  be  discussed  in  open  session 
with  anything  like  the  fulness  with  which  cases 
are  presented  to  a  jury,  it  is  impossible  to  prevent 
the  people  interested  from  bringing  matters  to  the 
attention  of  members  bv  talking  to  them.     Some- 


§  61]         Private  Influences  in  Elections         137 

thing  can  be  done,  and  has  been  done,  in  several 
of  our  states,  to  regulate  the  practice  of  lobbying, 
by  distinguishing  between  counsel  retained  to  argue 
before  committees  and  lobbyists  engaged  to  inter- 
view privately.  The  registration  of  such  men  in 
different  lists  gives  the  member  a  chance  to  know 
that  the  person  who  approaches  him  is  a  paid  agent 
employed  to  advocate  a  cause.  If  this  does  not 
place  the  legislator  in  a  judicial  attitude,  at  least  it 
puts  him  upon  his  guard. 

61.  Private  Influences  in  Elections 

If  the  American  public  is  losing  its  faith  in  repre- 
sentative government  and  demanding  direct  popular 
action,  the  sinister  influences  in  politics  have  long 
been  travelling  a  similar  road  by  turning  their 
attention  from  the  representative  body  to  the 
electorate.  Large  private  interests  have  found 
that,  instead  of  seeking  to  obtain  a  control  over  the 
legislator  after  election,  it  is  less  difficult  and  less 
dangerous  to  devote  their  energy  to  the  election 
itself,  and  herein  again  they  have  been  able  to  con- 
tract an  alliance  with  professional  politicians  for 
mutual  benefit. 

In  the  boss-ridden  states  the  influence  of  the  boss 
over  the  legislature  is  based  mainly  upon  his  power 
of  controlling  nominations  and  helping  to  elect  the 
candidates.  Even  for  legitimate  campaign  expenses 
money  is  needed,  which  can  be  provided  by  public- 
service  corporations  and  other  bodies  that  may  be 
affected  by  the  laws  enacted  in  the  ensuing  session. 
Their  easiest  means  of  procuring  friends  among  the 


138  Methods  of  Expressing  Public  Opinion  [§  61 

members  is  therefore  a  subscription  to  the  campaign 
funds  of  the  boss;  and  since  their  object  is  private 
gratitude,  not  party  victory,  they  sometimes  con- 
tribute to  the  funds  of  both  parties,  while  the  bosses, 
who  are  plying  a  trade,  rather  than  advancing  a 
public  policy,  have  no  scruple  about  joining  to  assist 
a  common  benefactor.  Let  us  not  imagine  that  this 
depicts  a  universal  condition,  for  many  states  have 
never  suffered  boss  rule;  nor  let  it  be  supposed  that 
the  majority  of  any  legislature  is  habitually  under 
the  orders  of  a  boss,  but  the  control  of  even  a  small 
number  of  members  is  usually  enough  where  a  case 
fairly  good  on  its  face  can  be  made  out. 

We  hear  complaints  in  such  cases  that  legislators 
do  not  represent  the  people  faithfully.  Yet  if  they 
are  to  be  guided,  not  by  their  own  sense  of  what  is 
right,  but  by  public  opinion,  it  is  not  unnatural  that 
they  should  gauge  that  opinion  by  the  prospect  of 
reelection;  and  if  their  reelection  depends  upon  a 
boss  whose  good  will  in  the  matter  is  nevertheless 
contrary  to  the  real  sentiment  of  the  electorate, 
then  this  mode  of  expressing  public  opinion  is 
vitiated  at  its  source.  Clearly  it  is  unfair  to  elect 
incompetent  or  untrustworthy  men  and  blame  the 
legislature  for  not  being  wiser  and  better.  It  is 
particularly  irrational  on  the  part  of  men  who  have 
voted  for  representatives  of  that  character.  If  an 
honest  legislator  cannot  be  corrupted  against  his 
will,  it  is  not  less  true  that  the  people  cannot  be 
compelled  to  elect  the  candidates  of  the  boss  unless 
they  want  to  do  so.  Moreover,  bad  as  the  conduct 
of  some  corporations  has  undoubtedly  been,  it  must 


§  62]     Defects  of  Legislatures  Exaggerated     139 

be  remembered  that  a  vicious  legislature  is  a  sore 
temptation.  Those  who  are  familiar  with  the 
subject  assert  that  the  attempts  to  extort  blackmail 
are  far  more  frequent  than  the  efforts  to  obtain 
privileges  by  purchase.  This  is  no  excuse  either 
for  seeking  privileges  or  for  resisting  blackmail 
by  corrupt  means;  but  a  condition  that  puts  a 
premium  on  corruption  in  resisting  injustice  is 
exceedingly  demoralizing  to  the  whole  community, 
and  that  condition  is  caused  by  requiring  the 
legislatures  to  do  work  of  a  kind  that  they  cannot 
do  properly,  and  more  work  than  any  body  could 
do  well. 

62.   Defects  of  Legislatures  Exaggerated 

If  the  condition  of  legislative  bodies  in  America 
is  as  bad  as  many  good  men  believe,  it  forebodes 
mischief;  for  in  the  same  way  that  a  people  among 
whom  jurors  cannot  be  trusted  to  be  fairly  impartial 
is  unsuited  for  popular  forms  of  trial,  so  a  people 
who  can  neither  trust  nor  control  their  represent- 
atives is  at  best  imperfectly  fitted  for  popular 
government.  The  complaints  are,  in  fact,  often 
exaggerated,  because  the  public  is  unable  to  unravel 
the  tangled  threads  of  politics,  to  follow  the  innu- 
merable measures  through  the  criss-cross  divisions 
in  the  legislature,  or  to  appreciate  the  reasons  for  a 
vote  on  a  particular  bill.  English  politics  are  much 
more  simple.  One  has  only  to  keep  his  eyes  on  the 
battle  between  the  two  front  benches,  which  is 
waged  in  a  bright  light  with  the  party  organs 
unceasingly   explaining   every   move   in    the   game. 


140  Methods  of  Expressing  Public  Opinion  [§  62 

But  here,  where  the  voting  is  far  less  on  party  lines 
and  hence  the  party  cannot  be  held  responsible, 
where  most  of  the  work  is  done  in  the  many  com- 
mittees of  Congress  and  the  state  legislatures, 
where  the  field  is  complicated  and  the  public  are 
suspicious  of  everything  they  do  not  see,  it  is  easy 
to  give  credit  to  rumors  that  are  hard  to  disprove. 
Both  the  difficulty  of  controlling  public  officers 
and  the  exaggeration  of  their  shortcomings  have 
increased  with  the  growth  of  democracy  and  the 
greater  complexity  of  party  machinery'  resulting 
therefrom.  Advocates  of  the  initiative  and  referen- 
dum assert  that  public  opinion  was  more  effective 
before  the  national  party  conventions  arose  than 
it  has  been  since. ^  But  the  national  convention 
for  the  nomination  of  a  presidential  candidate  was 
regarded  as  a  highly  popular  institution  when  it 
was  devised,  a  revolt  against  the  undemocratic 
nomination  by  a  congressional  caucus.  It  was  an 
effort  to  restore  to  the  people  the  selection  of  candi- 
dates, which  had  been  usurped  by  the  representa- 
tives in  Congress.  That  the  choice  of  the  members 
of  the  conventions  fell  into  the  hands  of  a  machine 
was  a  natural  consequence  of  the  size  and  complexity 
of  the  electorate.  That  it  turned  to  the  profit  of 
the  wire-puller  is  merely  another  example  of  the 
truth  that  the  larger  the  number  of  men  to  be  united 
for  common  action  the  more  elaborate  the  machinery^ 
will  inevitably  become,  and  the  greater  the  power 
of  the  men  who  can  manipulate  the  machine. 

1  Memorial  of  Initiiitivc  and  RcftToiidiiiii  League  (Senate   Doc.,  60 
Cong.,  1  Sess.,  No.  51G)  pp.  4-5. 


§  62]     Defects  of  Legislatures  Exaggerated     141 

The  tendency  to  exaggerate  the  defects  of  repre- 
sentative assembhes  is  due  in  part  to  the  inchnation 
of  men  not  in  active  pubhc  Hfe  to  assume  that  their 
views  are  shared  by  the  community  and  improperly 
slighted  by  politicians.  We  suffer,  no  doubt,  from 
a  lack  of  experience  in  our  public  bodies;  but  we 
suffer  also  from  a  self-confidence  that  causes  every- 
one to  think  himself  capable  of  forming  a  valuable 
opinion  on  every  subject,  and  not  less  from  a  general 
lack  of  mutual  confidence  in  one  another.  This 
last  is  a  highly  important  matter,  for  it  lies  at  the 
root  of  much  of  our  evil-doing  in  politics,  in  business, 
and  in  daily  life.  It  extends  from  the  college 
athletic  teams  to  the  railroad  corporations.  Much 
secret  cutting  of  rates  and  illicit  rebating  has  been 
due  to  the  fact  that  the  railroad  managers  did 
not  trust  each  other.  So  far  was  this  true  that  for 
a  time  the  expression  a  "gentlemen's  agreement" 
meant  an  agreement  that  was  not  kept.  Each 
company  was  easily  persuaded  by  a  shipper  that 
the  other  side  was  breaking  faith,  and  thought  it 
no  sin  to  do  the  same.  The  lack  of  mutual  confi- 
dence, which  has  been  a  fertile  cause  of  dishonesty, 
arises  from  the  upsetting  of  old  standards  by  the 
sudden  changes  of  industry,  and  from  the  extreme 
mobility  of  the  population.  It  is,  perhaps,  a  natural 
result  of  the  rapid  struggle  to  subdue  a  wilderness. 
In  spite  of  many  phenomena  to  the  contrary  the 
conditions  of  American  life  have  developed  individual 
self-assertion  and  self-reliance  at  the  expense  of  the 
qualities  that  make  for  collective  self-control. 

We  cannot  repeat  too  often  that  one  of  the  chief 


142  Methods  of  Expressing  Public  Opinion  [§  63 

difficulties  in  America  lies,  not  so  mucli  in  bringing 
public  opinion  to  bear  in  cases  where  it  can  and  does 
exist,  as  in  the  failure  to  perceive  its  intrinsic  limi- 
tations. We  need  to  learn  on  what  subjects  a  real 
public  opinion  can  be  formed,  how  far  it  can  extend 
to  particular  measures,  and  how  far  it  is  of  necessity 
confined  to  general  principles.  We  must  then  see 
that  within  those  limits  it  is  given  its  proper  effect; 
but  we  must  also  recognize  that  beyond  those  limits 
there  is  a  field  in  which  the  representative  must  act 
on  his  own  judgment,  and  here  we  must  take  care 
that  the  conditions  surrounding  him  promote  as 
far  as  possible  honesty  and  wisdom.  Of  this  some- 
thing will  be  said  hereafter.  The  problem  of  pre- 
venting representative  bodies  from  acting  contrary 
to  public  opinion  has  hitherto  attracted  far  more 
popular  attention. 

63.   Results  of  the  Confusion  of  Thought 

It  will  be  observed  that  our  ideas  of  the  functions 
proper  to  a  legislative  assembly  are  highly  confused 
and  to  a  great  extent  contradictory.  We  are  not 
clear  how  far  the  members  represent  the  whole 
community  and  how  far  their  several  constituencies; 
how  far  they  are  elected  to  give  effect  to  public 
opinion  and  how  far  they  are  chosen  in  order  that 
they  may  exercise  their  own  judgment.  It  may  be 
observed,  also,  that  the  defects  in  representative 
bodies  which  provoke  criticism  and  lack  of  pubhc 
confidence  are  in  the  main  a  natural  consequence 
of  this  confusion  of  thought.  The  qualities  that 
make  a  legislative  body  a  faithful  exponent  of  the 


§63]       Results  of  Confusion  of  Thought      143 

currents  of  public  opinion  do  not  confer  on  its 
members  the  independence  of  judgment  needed  to 
decide  rightly  intricate  questions  on  which  the  pub- 
lic have  no  opinion.  If,  therefore,  the  legislature  is 
intended  to  reflect  the  opinions  of  the  state  as  a 
whole,  its  members  ought  to  be  chosen  by  reason  of 
their  political  opinions,  and  it  ought  to  deal  as  little 
as  possible  with  matters  of  purely  local  interest; 
whereas  in  fact  the  member  for  Southfield,  while 
calling  himself  by  the  name  of  the  political  party 
long  dominant  in  the  place,  may  be  really  elected 
to  obtain  for  it  a  right  to  draw  its  water  supply 
from  the  Quinnebet  River.  For  the  same  reason  a 
legislature  so  constituted  ought  to  deal  as  little  as 
possible  with  private  bills,  whereas  the  member  is 
called  upon  today  to  vote  on  public  measures  far 
less  frequently  than  on  local  and  private  ones,  and 
if  he  owes  his  election  to  a  boss  he  is  subjected  to 
constant  pressure,  not  to  say  commands,  to  vote 
in  these  last  matters  according  to  the  trades  the 
boss  has  made.  If,  on  the  other  hand,  the  legis- 
lature is  intended  to  deal  mainly  with  local  and 
private  matters,  on  which  there  is  no  general  public 
opinion,  the  members  ought  to  be  placed  in  a  judi- 
cial attitude,  surrounded  by  judicial  safeguards  for 
impartiality,  and  like  the  judges  and  jurors  they 
ought  to  be  freed  from  political  pressure  of  all  kinds, 
even  that  which  may  call  itself  public  opinion. 

The  confusion  of  aims  has  been  the  direct  source 
of  scandals;  for  the  very  fact  that  the  legislature  is 
elected  ostensibly  for  public  objects,  and  that  the 
members  are,  therefore,  nominated  by  the  political 


144  Methods  of  Expressing  Public  Opinion  [§  64 

parties,  whereas  after  election  the  attention  of  those 
members  is  largely  occupied  by  local  and  private 
matters,  naturally  gives  to  the  parties,  or  rather 
to  the  manipulators  of  the  parties,  an  opportunity 
to  exert  an  influence  in  these  matters,  with  which 
the  parties  have  properly  no  concern.  In  short, 
the  main  difficulty  lies  in  a  failure  to  distinguish 
between  the  affairs  that  are  and  that  are  not  fit 
subjects  for  public  opinion  and  to  provide  the 
appropriate  machinery  for  dealing  with  each  class. 

64.   Remedies  Devised  for  Legislative  Defects 

In  England  this  distinction  is  recognized,  and  the 
special  system  of  legislation  by  private  bills  and 
provisional  orders  creates  a  different  procedure  for 
public  questions  and  for  local  or  private  ones,  the 
former  being  political,  the  latter  essentially  judicial, 
in  character.  But  the  remedies  adopted  in  Amer- 
ica have  been  almost  wholly  negative,  designed  to 
restrain  bad  legislation,  or  even  to  diminish  all 
legislation,  rather  than  to  insure  proper  considera- 
tion of  the  laws  enacted. 

One  device  almost  as  old  as  our  national  existence, 
and  lasting  to  the  present  day,  is  that  of  limit- 
ing the  powers  of  the  legislature  by  the  provisions 
of  the  constitution.  This  prevents  the  legislature 
from  doing  things  that  the  people  in  their  sovereign 
capacity  of  constitution-makers  think  it  ought  not 
to  have  authority  to  do.  We  have  already  seen  that 
it  has  great  advantages  in  defining  the  field  within 
which  the  minority  is  bound  to  submit  to  the  will 
of  the  majority.     Such  is  the  object  of  the  Bill  of 


§  64]       Remedies  for  Legislative  Defects       145 

Rights  that  finds  a  place  in  all  our  constitutions. 
Sometimes,  however,  the  restrictions  go  so  far  that 
they  prevent  the  majority  from  acting  in  matters 
where  its  opinion  ought  to  be  decisive.  Of  late 
years  the  tendency  has  gone  very  far,  especially  in 
the  newer  parts  of  the  country,  for  the  state  con- 
stitutions have  grown  longer  and  more  elaborate, 
fettering  the  legislatures  to  an  ever  increasing  extent. 
Practically  this  results  in  restraining  the  people 
themselves,  in  preventing  a  genuine  public  opinion 
which  exceeds  the  limits  prescribed  from  having 
the  operation  it  ought  to  have.  It  cannot,  indeed, 
forever  hinder  the  public  from  having  their  way  if 
they  continue  long  enough  of  the  same  mind;  but 
it  does  erect  a  barrier  that  is  not  easily  or  rapidly 
surmounted.  If  carried  too  far  it  is  a  limitation 
of  normal  representative  government,  to  be  justified 
only  on  the  ground  that  the  legislature  cannot  be 
trusted;  and  this  is,  indeed,  the  motive  of  such 
provisions.  The  remedy  is  clearly  negative,  designed 
not  to  make  the  legislature  good,  but  to  prevent  its 
committing  certain  specified  sins. 

One  form  the  constitutional  restraints  have  taken 
has  been  that  of  forbidding  special  legislation.  If 
this  went  so  far  as  to  withdraw  from  the  legislature 
all  local  and  private  bills,  and  provide  some  other 
method  of  settling  those  matters  which  cannot  be 
regulated  by  general  laws,  it  might  have  greater 
importance,  but  it  has  merely  touched  the  fringe 
of  the  subject  and  has  a  slight  negative  effect.  The 
provisions  have  been  evaded  by  passing  a  general 
law,  for  example,  for  all  cities  of  the  second  class, 

10 


146  Methods  of  Expressing  Public  Opinion  [§  64 

and  classifying  the  cities  in  the  state  so  that  only 
one  of  them  falls  into  that  class.  The  courts  have 
begun  to  hold  that  such  laws  violate  the  constitu- 
tion, but  their  frequent  enactment  has  shown  how 
difficult  it  is  to  enforce  a  provision  of  this  kind. 
Moreover,  provisions  against  special  legislation 
have  not  seriously  interfered  with  the  flood  of 
special  acts,  for  Professor  Reinsch  tells  us  that  in 
the  five  years  from  1899  to  1904  the  number  of 
acts  passed  by  legislatures  in  the  United  States 
was  45,552,  of  which  16,320  were  public  and  the 
rest  special  and  local. ^ 

The  flood  of  special  acts  has  been  in  part  the  cause 
of  another  mode  of  restricting  the  legislative  out- 
put —  a  method  also  more  commonly  used  in  the 
newer  than  in  the  older  states  —  that  of  lessening 
the  frequency  and  limiting  the  duration  of  the 
sessions.  It  seems  to  be  done  in  pursuance  of  the 
theory  set  forth  by  Mr.  Bryce  when  he  spoke  of 
the  American  principle  that  most  bills  are  presump- 
tively bad,  ergo  kill  as  many  as  you  can.  This  again 
is  an  attempt,  not  to  make  the  legislatures  good, 
but  to  limit  the  harm  they  can  do  by  limiting  their 
total  activity.  It  lessens  their  dignity,  and  there- 
with their  sense  of  responsibility,  while  the  shorten- 
ing of  the  session  renders  well-considered  legislation 
almost  impossible.  Forty  days  every  two  years  is 
far  too  brief  a  period  for  a  proper  discussion  of  the 
questions  that  ought  to  come  before  the  legislative 
body,  and  it  is  not  surprising  that  the  members 
make  little  effort  to  use  that  time  for  fruitful  debate. 

^  American  Legislatures  and  Legislative  Methods,  p.  300. 


§65]  The  Recall  147 

65.   The  Recall 

A  new  device  for  keeping  the  representative  under 
control  has  been  urged  of  late,  that  of  a  power  to 
recall  him  by  vote  of  his  constituents.  It  is  akin 
to  the  practice  freely  employed  at  one  time  in 
Massachusetts  of  adopting  in  town  meeting  instruc- 
tions to  the  representative.  This  disappeared  about 
a  hundred  years  ago,  no  doubt  because  it  proved 
inexpedient,  and  because  it  could  be  effectively 
used  only  where  there  were  frequent  town  meetings 
and  the  member  was  elected  by  the  town.  Like 
that  practice,  the  recall,  as  applied  to  a  member  of 
the  legislature,  assumes  that  he  represents,  not  the 
whole  community,  but  only  his  constituency;  and 
in  this  it  differs  for  the  worse  from  the  Swiss  insti- 
tution for  dissolving  the  whole  legislature  by  vote 
of  the  whole  canton,  a  provision  which  still  has  a 
place  in  the  constitutions  of  several  cantons,  but, 
after  a  few  fitful  experiments  at  the  outset,  has  long 
fallen  into  disuse. 

The  recall  assumes  also  that  the  representative 
is  essentially  a  delegate,  whose  duty  consists  in 
giving  effect  to  the  prevalent  opinion  of  his  district, 
instead  of  a  public  servant  charged  to  exercise  his 
own  judgment  on  the  evidence  brought  before  him. 
It  would  be  obviously  improper  for  the  district  to 
recall  him  because  it  disliked  his  action  on  local 
or  private  bills  in  which  it  was  not  interested  and 
had  no  real  opinion;  and  if  it  did  so  because  it  dis- 
liked his  action  on  a  bill  in  which  it  was  directly 
interested,  the  result  would  be  to  accentuate  one  of 


148  Methods  of  Expressing  Public  Opinion  [§  65 

the  worst  evils  from  which  our  legislatures  suffer. 
Of  course  this  is  not  the  way  the  recall  of  a  repre- 
sentative presents  itself  to  its  advocates.  To  them 
it  appears  as  a  method  of  getting  rid  of  a  man 
who  has  proved  himself  unworthy,  but  if  so  it  is 
an  acknowledgment  of  popular  incapacity  to  choose 
trustworthy  men,  with  a  hope  that  a  second  election 
will  be  wiser  than  the  first.  The  effects  of  the 
recall  are  at  present  a  matter  of  speculation,  and 
there  is  no  need  of  dwelling  upon  the  institution 
here,  except  to  point  out  that  it  is  one  more  symp- 
tom of  the  distrust  of  representative  government, 
and  another  device  for  restraining  misconduct  rather 
than  for  improving  the  conditions  under  which  the 
legislature  works. 

The  recall  touches  the  present  discussion  only  so 
far  as  it  affects  the  legislature;  but  where  it  has 
been  adopted  it  is  by  no  means  confined  to  members 
of  this  body,  nor,  indeed,  is  that  its  primary  intent. 
When  it  is  applied  to  executive  officers  representing 
an  entire  community,  and  is  coupled  with  a  length- 
ening of  the  terms  for  which  they  are  chosen,  it  has 
much  the  same  object  as  frequent  elections  for  short 
periods,  and  may,  perhaps,  accomplish  that  object 
better.  Its  application  to  the  judiciary  involves 
other  considerations.  If  a  judge  is  intended  to 
render  decisions  that  will  be  approved  by  the  people 
at  large,  then  he  ought  to  be  recalled  if  he  fails  to 
do  so;  but  if  his  function  is  to  administer  justice 
without  fear  or  favor,  the  recall  is  as  much  out  of 
place  as  the  decision  of  law  suits  by  a  mass  meet- 
ing of  citizens.     The  laws  that  he  applies  ought  to 


§66]  The  Direct  Primary  149 

be  consonant  with  pubhc  opinion,  but  he  ought  to 
decide  cases  according  to  his  conscience.  If  he  is 
incompetent,  corrupt,  or  in  any  way  unfit  for  his 
high  oflBce,  he  ought  to  be  impeached  or  removed 
after  trial  or  hearing. 

66.   The  Direct  Primary 

Another  remedy  for  the  election  of  public  officers 
who  do  not  truly  represent  public  opinion  has  been 
sought  in  nomination  by  a  direct  primary  of  all  the 
voters  in  the  party,  instead  of  by  a  party  convention 
of  delegates  chosen  by  the  local  caucuses.  This 
again  is  not  designed  principally  for  members  of 
the  legislature,  but  for  officers  chosen  from  a  larger 
area.  Its  object  is  to  strike  at  the  power  of  the 
political  machine,  at  the  control  by  the  professional 
politician;  and  the  desire  for  relief  of  that  kind  has 
caused  it  to  be  adopted  widely,  one  might  almost 
say  generally,  over  the  United  States.  But  it  is 
still  so  new  that  its  ultimate  effects  can  as  yet  only 
be  conjectured.  As  in  the  case  of  all  devices  from 
which  too  much  is  expected,  its  first  results  have 
not  been  wholly  satisfactory.  Whether  in  the  future 
they  will  improve  or  not  time  alone  can  show. 

We  have  already  seen  that  any  body  of  people 
can  only  answer  "Yes"  or  "No"  to  a  question 
presented  to  them  for  decision,  and  at  elections  it 
is  the  function  of  parties  to  formulate  the  question 
by  presenting  candidates  to  the  voters.  This  is 
still  done  under  the  direct  primary;  but  the  party 
itself  is  so  large  a  body  that  someone  must  pre- 
sent the  candidates  for  nomination  to  its  members. 


150  Methods  of  Expressing  Public  Opinion  [§  66 

Even  if  all  the  Republican  voters  in  a  state  could 
come  together  in  mass  meeting,  a  name  to  be  dis- 
cussed and  voted  upon  would  have  to  be  proposed 
by  someone,  and  this  is  certainly  not  less  true  when 
the  members  of  the  party  never  meet  together,  but 
cast  their  ballots  singly  in  polling  booths.  Moreover, 
to  propose  a  name  to  all  the  party  voters  in  a  large 
community  is  not  a  simple  matter.  It  is  not  enough 
to  collect  the  number  of  signatures  required  to  entitle 
the  name  to  appear  on  the  ballot.  That  is  labori- 
ous; but  to  have  any  chance  of  success  the  candi- 
date and  his  qualifications  must  be  made  known  to 
the  voters,  and  that  involves  an  organization  with 
branches  throughout  the  community. 

The  bill  of  Governor  Hughes  in  Xew  York  pro- 
vided that  candidates  for  nomination  should  be  pro- 
posed by  the  standing  committee  of  the  party,  a 
plan  that  did  away  with  nomination  by  a  conven- 
tion and  made  the  party  chiefs  responsible  for  their 
selection  of  candidates  to  the  whole  body  of  the 
party,  but  did  not  entail  any  other  organization 
unless  the  nominations  were  objectionable  to  a  con- 
siderable body  of  voters,  when  there  would  be  a 
palpable  motive  for  it.  But  under  the  usual  system 
of  direct  primaries  a  special  organization  to  solicit 
the  nomination  is  normally  a  necessity,  even  when 
the  only  question  is  between  the  rival  ambitions  of 
individuals;  an  organization,  by  the  way,  which  is 
temporary  in  its  nature,  for  it  concerns  only  a 
single  election  if  it  is  not  to  work  a  permanent  spht 
in  the  party.  Now  such  an  organization  is  very 
expensive,   and  can    hardly  be    undertaken    unless 


§66]  The  Direct  Primary  151 

the  candidate  or  his  friends  are  prepared  to  spend 
money  freely.  The  contests  for  nomination  at  the 
direct  primaries  in  Wisconsin  in  1909  are  said  to 
have  cost  the  candidates  $802,659.^ 

The  direct  primary  intensifies  the  practice,  which 
had  already  begun  to  prevail  under  the  convention 
system,  of  conducting  an  elaborate  preliminary 
canvass  for  nomination.  Perhaps  this  is  inevitable 
under  present  conditions,  but  anything  that  tends 
to  increase  the  personal  expenses  of  election  is 
unfortunate,  and  perhaps  the  tendency  toward  self- 
nomination  is  not  altogether  beneficial.  The  evil 
to  be  combated  is  real,  and  the  effect  of  selecting 
members  of  a  state  legislature  with  a  view  to  their 
choice  of  United  States  senator  is  not  good;  but  it 
is  by  no  means  yet  proved  that  the  direct  primary  is 
the  road  to  the  promised  land. 

1  Address  of  Senator  Lodge  at  Princeton  University,  1912  (Senate 
Doc.,  62  Cong.,  2  Sess.,  No.  406),  p.  8. 


CHAPTER   XI 

DIRECT  POPULAR  ACTION 

67.   The  Referendum 

The  inroads  made  on  the  representative  system 
in  the  United  States  bring  us  to  a  consideration 
of  the  second  method  of  expressing  pubHc  opinion, 
that  of  direct  popuUir  action.  In  America  this  is 
in  part  a  native  growth  and  in  part  a  recent  imi- 
tation of  Swiss  institutions.  Only  two  effective 
methods  of  direct  action  by  the  people  have  yet 
been  devised:  a  popular  assembly  which  can  debate 
before  it  votes;  and  a  ballot  cast  at  the  polls  without 
a  general  meeting  of  the  voters. 

68.   The  Town  Meeting 

Popular  assemblies  have  existed  at  various  times 
from  the  dawn  of  history  to  our  own  day,  the 
examples  most  familiar  to  us  being  the  Athenian 
ecclesia,  the  Swiss  landsgemeinde,  and  the  town 
meeting  of  New  England.^  Obviously  they  can  be 
used  only  when  the  community  is  compact  enough 
to  permit  the  citizens  to  come  togetlier  easily,  and 

^  There  is  a  common  feeling  that  the  town  meeting  is  a  small  affair 
compared  with  the  Swiss  landsgemeinde.  It  has  not  the  sovereign  power, 
but  it  is  not  by  any  means  always  smaller.  The  town  of  Hrookline  in 
Massachusetts,  for  example,  has  several  times  the  population  of  the 
largest  Swiss  canton  that  still  allows  amendment  and  debate  at  its 
landjigemeinde. 

152 


§68]  The  Town  Meeting  153 

small  enough  to  enable  them  to  hear  a  man's  voice. 
When  these  limits  are  exceeded  the  institution  loses 
its  character  as  it  has  done  in  the  Swiss  canton  of 
Appenzell-Ausserrhoden,  where  debate  is  no  longer 
possible.  In  such  a  case  the  essential  object  of  the 
meeting  is  lost,  and  the  people  might  as  well  cast 
their  votes  in  polling  booths  nearer  home. 

A  mass  meeting  of  the  citizens  has  distinct  advan- 
tages over  a  popular  vote  taken  without  a  meeting. 
In  the  first  place  the  questions  that  arise  in  a  com- 
munity small  enough  to  have  such  an  assembly 
are  more  likely  to  be  simple  and  local.  They  are 
more  likely  to  affect  matters  with  which  everyone 
is  familiar,  and  hence  fall  more  commonly  within 
the  range  of  subjects  on  which  a  real  public  opinion 
can  be  formed.  Then  they  are  not  very  numerous, 
so  that  the  people  vote  upon  them  after  hearing 
them  all  discussed;  and  in  a  New  England  town 
meeting,  at  least,  they  are  often  very  thoroughly 
debated.  The  citizen  cannot  reach  his  conclusions 
merely  after  hearing  one  side  stated  by  his  friends, 
or  reading  one  side  in  his  newspaper,  or  being 
simply  told  by  his  party,  or  by  some  other  or- 
ganization, how  to  vote. 

Moreover,  the  assembly  or  town  meeting  has 
an  advantage  quite  apart  from  the  formation  of 
opinion  on  particular  questions;  for  its  most  valu- 
able functions  are  those  of  inspection,  supervision, 
and  criticism.  The  initiation  of  measures  for  the 
government  of  a  New  England  town  comes  mainly 
from  the  selectmen,  who  are  the  executive  officers 
of  the  community,  always  present  to  explain  their 


154  Methods  of  Expressing  Public  Opinion  [§  69 

proposals  and  defend  their  official  conduct;  and 
the  real  importance  of  the  town  meeting,  besides 
ratifying  or  rejecting  these  proposals,  is  that  of 
providing  constant  criticism  of  the  management 
of  public  affairs,  or  at  least  the  possibility  of  such 
criticism  which  has  much  the  same  effect.  This 
is  the  chief  duty  of  the  House  of  Commons  at  the 
present  day;  and  in  fact  the  selectmen  bear  to  the 
town  meeting  very  nearly  the  same  relation  that  a 
modern  English  ministry  does  to  Parliament,  and 
precisely  the  relation  that  a  Swiss  executive  coun- 
cil does  to  the  legislature.  Some  such  process  of 
holding  a  general  inquest  on  the  administration  of 
public  affairs  makes  up  a  large  part  of  the  useful- 
ness of  any  assembly  that  comes  habitually  into 
direct  contact  with  the  public  officers. 

It  is  unnecessary  to  describe  here  the  various 
forms  of  mass  meetings  of  citizens  or  to  discuss 
their  merits,  because  an  institution  of  that  kind  is 
not  adapted  for  government  on  a  large  scale.  Ex- 
cellent as  it  is  for  rural  communities  or  small  towns, 
it  cannot  be  applied  to  a  whole  state  or  to  a  modern 
city  with  its  hosts  of  voters,  and  it  is  with  these 
that  we  are  now  concerned. 

69.   The  Referendum 

A  popular  vote  without  a  mass  meeting  clearly 
cannot  fulfil  the  purpose  of  a  general  inquest  on 
the  conduct  of  the  government.  At  best  it  can 
express  an  opinion  on  the  particular  measures  sub- 
mitted to  the  people,  and  it  does  this  in  a  less  satis- 
factory' way  than  a  public  assembly  because  there 


§  70]  Reasons  for  the  Referendum  155 

is  no  certainty  of  adequate  discussion.  A  popular 
vote,  therefore,  or,  to  use  the  term  that  has  now 
come  into  universal  vogue,  the  referendum,  performs 
only  a  part  of  the  functions  of  a  mass  meeting  and 
performs  those  less  perfectly.  Yet  it  is  the  only 
means  of  direct  popular  action  in  the  making  of  laws 
on  a  large  scale.  The  growth  of  cities  has  been 
driving  the  town  meeting  out  of  its  original  home 
in  New  England,  until  only  a  small  fraction  of  the 
people  of  Massachusetts  now  enjoy  that  form  of 
managing  their  affairs;  and  although  it  has  been 
adopted  in  other  sections  of  the  country,  especially 
in  the  Northwest,  it  cannot,  as  we  have  observed, 
be  extended  beyond  small  communities.  The 
referendum,  on  the  other  hand,  which  is  physically 
capable  of  use  on  any  scale,  has  of  late  years  been 
winning  a  larger  amount  of  public  support,  and  is 
believed  by  many  people  to  be  destined  to  play  a 
constantly  increasing  part  in  the  government  of 
the  country.  A  consideration  of  the  possibilities 
that  it  offers,  and  the  limitations  to  which  it  is 
subject,  needs,  therefore,  no  apology. 

70.   Reasons  for  the  Referendum 

(a)  Distrust  of  the  Legislature 

The  objects  sought  in  the  use  of  the  referendum 
as  a  means  of  expressing  public  opinion,  instead  of 
relying  upon  the  elected  legislature  to  express  it,  may 
be  brought  under  two  general  heads.  One  of  these 
is  a  fear  that  the  representatives  cannot  be  trusted 
to   do   so   faithfully.     They   are   exposed   to   many 


156  ^Methods  of  Expressing  Public  Opinion  [§  70 

temptations  to  betray  the  cause  of  the  public, 
arising  from  the  pressure  of  the  party  or  the  boss, 
from  their  willingness  to  trade  their  votes  in  order 
to  carry  through  a  measure  —  often  a  local  one  — 
in  which  they  are  chiefly  interested,  and  sometimes 
from  darker  motives,  based  on  the  chances  for  black- 
mail or  the  corruption  of  unscrupulous  men  who  are 
seeking  for  private  profit  to  obtain  or  obstruct  legis- 
lation. To  guard  against  such  dangers  of  misrep- 
resentation it  is  urged  that  an  appeal  ought  to  lie 
from  the  agent  to  the  principal,  from  the  legislature 
to  the  people  who  are  the  source  of  its  authority. 

The  opponents  of  the  referendum  reply  that  a 
popular  vote  may  be  subject  to  the  same  bad 
influences  as  a  popular  election.  They  ask  whether 
a  community  that  is  unable  to  select  intelligent, 
courageous,  and  honest  representatives  is  more 
competent  to  pass  judgment  upon  legislative  meas- 
ures; whether  the  springs  of  public  opinion  may 
not  be  stained  by  the  same  methods  that  corrupt 
the  legislature;  whether  the  voters  themselves  may 
not  feel  the  pressure  of  the  party  or  the  boss  as 
much  when  voting  on  a  law  as  when  casting  ballots 
for  a  representative.  They  point  out  that  the 
channels  through  which  information  and  opinions 
are  diffused  may  be  polluted,  that  the  press  is  not 
free  from  bias  in  favor  of  concerns  that  advertise 
largely  in  its  columns,  and  that  cases  have  been 
known  where  almost  all  the  newspapers  in  a  city 
were  under  the  control  of  a  corporation  seeking 
privileges  from  the  legislature.  The  dangers,  they 
say,  may  not  be  so  great  in  the  case  of  a  popular 


§  70]  Reasons  for  the  Referendum  157 

vote  as  in  that  of  a  representative  body;  but  he 
must  be  bold  or  reckless  who  would  venture  a 
prophecy  on  the  subject  until  we  have  had  more 
experience  of  popular  votes. 

The  opponents  of  the  referendum  argue  also  that 
it  would  tend  to  impair  the  quality  of  representative 
bodies  by  reducing  their  sense  of  responsibility;  and 
the  Liberal  Government  in  England  recently  rejected 
the  proposal  as  a  means  of  solving  deadlocks  between 
the  Houses  of  Parliament  partly  on  that  ground. 
In  this  connection  it  is  interesting  to  observe  that 
in  the  United  States  the  referendum  is  advocated 
as  a  radical  measure  by  labor  organizations  and  by 
people  struggling  against  large  financial  and  corporate 
interests,  and  is  opposed  by  the  more  conservative 
elements;  whereas  in  England  precisely  the  opposite 
is  the  case.  There  the  Conservatives  regard  it  as 
a  possible  means  of  blocking  radical  legislation,  and 
for  that  reason  the  Liberals  with  their  allies  in  the 
Labor  Party  will  have  none  of  it. 

(b)  Desire  to  Separate  Issues 

Another  reason  for  resorting  to  the  referendum  as 
a  method  of  expressing  public  opinion  arises  from 
the  confusion  of  issues  in  a  general  election  to  which 
we  have  already  referred.  An  election  means  that 
the  voters  on  the  whole  prefer  one  candidate  or 
one  party  to  another;  yet  they  may  not  agree  with 
all  the  points  in  the  programme,  and  the  referendum 
gives  them  a  chance  to  separate  the  issues,  passing 
a  distinct  judgment  on  each  of  them  by  itself.  They 
can  thus  retain  in  power  the  party  or  persons  with 


158  Methods  of  Expressing  Public  Opinion  [§  70 

whom  they  are  most  nearly  in  accord,  while  carry- 
ing public  opinion  into  effect  more  accurately  by 
rejecting  the  measures  they  do  not  approve.  This 
is  the  chief  reason  for  the  existence  of  the  referen- 
dum in  Switzerland. 

Used  for  such  a  purpose,  the  institution  aims  at 
curing  what  is  to  some  extent  an  unavoidable  defect 
of  representative  government  in  a  large  democracy, 
if  we  assume  that  the  object  of  representation  is 
solely  to  give  effect  to  public  opinion.  Some  people 
do  not  feel  that  measures  ought  to  be  separated  in 
this  way,  and  it  is  interesting  again  to  refer  to  the 
opinion  of  an  English  radical  —  in  this  case  a  Social- 
ist and  one  of  the  leaders  of  the  Labor  Party. 
In  his  Socialism  and  Governmenty  Mr,  J.  Ramsay 
Macdonald  says:  "Democratic  legislation  must  be 
the  embodiment  in  many  forms  and  directions  of 
one  comprehensive  idea  or  sentiment,  and  every 
constitutional  change  which  tends  to  break  up  the 
wholeness  of  a  programme  and  to  encourage  the 
people  to  vote  for  separate  measures  and  not  for  a 
group  of  measures,  all  equally  necessary  if  the  idea  of 
the  time  is  to  be  carried  out,  is  reactionary.  .  .  .  Unless 
measures  are  attached  to  men  and  men  to  measures, 
both  are  pretty  useless."  ^  "The  difference  between 
Parliament  with  its  continuity  of  policy  and  its  pm*- 
suit  of  a  steady  course  year  after  year,  and  a  series 
of  separate  meetings  on  a  series  of  disconnected  sub- 
jects, is  that  in  the  one  there  is  the  guidance  of  party 
which  secures  that  questions  shall  not  be  treated  *  on 
their  merits,'  but  in  relation  to  general  principles  and 

1  Vol.  ii,  p.  9. 


§  71]  The  Sphere  of  Efficiency  159 

in  connected  groups,  whilst  in  the  other  there  is  no 
such  guidance,  and  decisions  are  therefore  discon- 
nected, and  display  no  general  idea.  .  .  .  Party  is 
the  consistent  and  organic  way  of  applying  a  prin- 
ciple, and  should  be  taken  as  a  whole  and  not  in 
parts.  The  existence  of  party  secures  that  a  stream 
of  tendency  flows  through  human  affairs."  ^ 

71.  The  Sphere  of  Efficiency 

From  the  point  of  view  of  this  book  we  are  less 
interested  in  the  question  whether  the  objects 
sought  by  the  referendum  are  desirable  than  in 
the  further  question  how  far  it  is  capable  of  attain- 
ing them.  So  far  as  it  does  so  it  is  efficient.  So  far 
as  it  does  not  it  is  not  efiicient,  although  it  may 
produce  other  results  good  or  bad.  Now  both  of  the 
objects  described  above  are  included  in  the  general 
aim  of  bringing  to  bear  on  political  matters  a  direct 
public  opinion  as  contrasted  with  an  indirect  expres- 
sion of  public  opinion  distorted  more  or  less  by 
passing  through  the  medium  of  representation.  A 
popular  vote  on  a  law  being  a  means  of  ascertaining 
public  opinion  on  that  particular  measure  is  clearly 
inapplicable    unless    the    people    have    an    opinion 

^  Vol.  ii,  p.  14.  In  another  place  (vol.  i,  pp.  102-4),  speaking  of  di- 
rect popular  legislation,  he  says:  "  Direct  Democracy  must  bring  primary 
instincts  more  into  play.  The  appeal  to  a  crowd  must  be  couched 
in  vague  and  general  terms.  It  must  have  scintillating  points  about 
it.  This  will  be  taken  into  consideration  by  politicians  competing  for 
popularity.  Intention  will  overshadow  practicality.  .  .  .  The  practi- 
cal details  will  have  to  be  enlivened  and  legislation  popularized,  not  by 
way  of  improving  it,  but  of  making  it  more  sensational,  more  gran- 
diloquent, more  effusive,  if  the  people  are  to  be  roused  up  to  vote 
for  bills  separately.  This  will  tend  to  increase  the  shop-window  display 
of  legislation." 


160  Methods  of  Expressing  Public  Opinion  [§  71 

thereon;  and  this  brings  us  back  to  the  question 
discussed  in  an  earher  chapter,  on  what  subjects  a 
real  public  opinion  can  exist.  We  saw  that  it  can 
be  formed  on  issues  in  apparent  harmony  or  discord 
with  principles  already  deeply  embedded  in  the 
civilization  of  the  community;  and  that  on  other 
matters,  involving  a  knowledge  of  facts,  it  can  exist 
if  a  substantial  part  of  those  facts  are  already 
familiar  to  the  people,  or  if  they  will  take  the 
pains  to  ascertain  them.  The  first  of  these  cases, 
that  of  a  measure  depending  on  general  princi- 
ples alone,  does  not  often  occur;  for  legislation  is 
a  complicated  business  and  can  seldom  be  con- 
ducted on  abstract  principles.  When  such  a  case 
does  occur,  the  representatives  are  highly  unlikely 
to  act  in  a  way  to  shock  popular  conviction,  and  are 
certain  not  to  continue  to  do  so  long.  Nor  is  it 
common  in  a  large  community  that  a  substantial 
part  of  the  facts  needed  for  framing  a  law  are  a 
matter  of  public  notoriety.  The  people  may  be 
sufficiently  familiar  with  a  subject  to  be  keenly 
sensible  of  a  grievance,  without  knowing  enough  to 
judge  of  the  remedy.  They  may  feel  sure  of  the 
general  direction  they  wish  legislation  to  follow, 
without  being  able  to  weigh  the  merits  of  particular 
provisions.  That  involves  an  adjustment  of  con- 
flicting interests,  a  compromise  of  opposing  views, 
a  consideration  of  the  remote  effects,  direct  and 
indirect,  that  the  law  will  produce,  a  balance  of 
advantages  and  defects,  which  require  careful  study 
of  all  the  facts  involved  in  the  situation. 

A  large  part,  therefore,  of  the  measures  passed 


§  71]  The  Sphere  of  Efficiency  IGl 

by  most  legislatures  are  of  such  a  nature  that  a  real 
public  opinion  upon  them  can  be  formed  only  if 
the  people  are  willing  to  devote  no  little  effort  to 
their  consideration;  and  the  more  complex  they 
are,  the  greater  the  effort  required.  Whether  the 
people  will  make  the  necessary  effort  or  not  depends 
upon  how  much  interest  they  will  take  in  the  matter, 
and  that  is  a  very  difficult  thing  to  foretell.  Occa- 
sionally they  display  a  surprising  interest  and  canvass 
the  facts  eagerly;  but  such  examples  furnish  no 
reason  to  suppose  that  they  will  do  so  in  all  similar 
cases;  and,  indeed,  from  mere  lack  of  time  they 
could  not  do  it  if  they  would.  Nor  does  the  fact 
that  a  certain  number  of  persons  petition  for  a 
popular  vote  prove  that  the  interest  in  the  question 
is  so  widespread  as  to  give  rise  to  a  true  public 
opinion.  It  proves  that  some  people  are  much  in- 
terested, but  not  that  the  bulk  of  the  community 
cares  enough  to  study  the  facts  carefully.  A 
political  system,  like  any  other  institution,  cannot 
be  constructed  on  the  supposition  that  extraordinary 
events  will  habitually  occur.  It  would  seem  wiser, 
therefore,  to  confine  the  referendum  to  questions 
involving  general  principles  alone,  and  to  the  class 
of  matters  where  the  public  is  normally  familiar 
with  the  facts  required  for  a  decision,  than  to  extend 
it  promiscuously  to  questions  where  a  rational 
opinion  can  be  formed  only  by  a  knowledge  of 
details  with  which  the  ordinary  man  does  not 
readily  become  acquainted. 


11 


162  Methods  of  Expressing  Public  Opinion  [§  72 


72.   Negative  and  Positive  Forms  of  Popular  Votes 

A  direct  popular  vote  upon  a  law  may  be  applied 
for  two  different  purposes.  It  may  be  used  to  reject 
a  law  which  the  legislature  has  enacted,  and  if  so, 
under  the  name  of  the  referendum,  it  has  a  negative 
effect.  In  such  cases  it  is  a  device  for  a  popular 
veto,  superimposed  upon  the  executive  veto  if  there 
be  one,  and  is  used  not  to  legislate,  but  to  prevent 
legislation.^ 

The  other  purpose  is  that  of  enacting  a  law  which 
the  legislature  has  not  passed.  This  form  is  known 
as  the  initiative,  and  it  is  strictly  a  means  of  direct 
popular  legislation.  That  the  referendum  and  the 
initiative  for  general  legislation  in  America  have 
almost  always  been  adopted  at  the  same  time,  and 
are  at  present  invariably  advocated  together  by  one 
set  of  arguments,  shows  that  they  are  promoted 
rather  from  a  belief  that  they  are  twin  movements 
in  a  common  direction,  than  from  a  consideration  of 
their  special  effects.  Yet  their  objects  are  so  dif- 
ferent that  their  political  effects  and  their  relation 
to  public  opinion  may  not  be  identical.  Each  of 
them  deserves  to  be  examined  separately,  and  to  be 

1  Except  in  states  where  it  is  provided  that  the  governor's  veto  shall 
not  stand  if  the  popular  vote  is  in  favor  of  the  law.  In  such  a  case,  if 
he  vetoes  the  act,  its  opponents  will  not  petition  for  a  popular  vote  in 
order  at  much  trouble  and  expense  to  kill  a  law  already  dead,  with  the 
chance  that  it  may  after  all  be  ratified;  but  the  supporters  of  the  bill 
might  petition  against  it  for  the  purpose  of  carrying  it  by  popular  vote. 
If  so,  the  object  would  be,  not  to  prevent,  but  to  promote  legislation, 
but  although  the  form  would  be  a  referendum,  the  substance  would  be 
that  of  the  initiative.  The  same  would  be  true  if  a  legislature,  under 
the  power  conferred  upon  it,  should  order  a  referendum  upon  a  bill  in 
order  to  escape  a  veto  by  the  governor. 


§72]  Forms  of  Popular  Votes  103 

studied,  not  as  is  too  commonly  done,  from  a  theoreti- 
cal standpoint  alone,  but  primarily  in  the  light  of  its 
actual  operation  in  the  two  countries  which  have 
made  the  most  use  of  it,  Switzerland  and  the  United 
States.     We  shall  begin  with  the  referendum. 


CH.\PTER  XII 

THE  REFERENDUM   IX   SWITZERLAND 

73.   Compulsory  and  Optional 

For  more  than  a  generation  the  Swiss  have  used 
the  referendum  freely  in  two  distinct  forms.  One 
of  these  is  known  as  compulsory,  that  is,  when  a 
popular  vote  upon  measures  passed  by  the  legisla- 
ture is  absolutely  required;  the  other  is  the  optional, 
when  it  is  required  only  in  case  a  petition  therefor 
is  presented  by  a  certain  number  of  voters.  The 
distinction  is  the  same  that  exists  in  America  between 
amendments  to  a  state  constitution  which  must  go 
before  the  people  for  ratification,  and  the  recent 
process  of  a  referendum  on  petition.  In  Switzerland 
changes  in  a  constitution,  whether  federal  or  can- 
tonal, must  always  be  submitted  to  popular  vote; 
but  for  other  laws  the  practice  varies.  In  the 
Confederation  and  in  nearly  half  of  the  cantons  the 
referendum  upon  them  is  optional;  in  as  many  more 
it  is  compulsory;  in  six  the  laws  are  enacted  in  mass 
meetings  called  landsgemeinde,  and  in  one  only  there 
is  no  referendum  at  all. 

Now  the  compulsors'  form,  being  automatic, 
cannot  be  a  dead  letter,  for  a  popular  vote  must  be 
held;  and  in  fact  it  often  results  in  the  defeat  of  a 
law,  although  naturally  in  a  smaller  proportion  of 

IGi 


§  74]  Results  in  Switzerland  165 

cases  than  under  the  optional  form  where  the  decision 

of  the  people  is  invoked  only  when  there  is  strong 

objection  to  the  law.     In  most  of  the  cantons  the 

optional  form  has  proved  effective;  that  is,  a  demand 

for  a  popular  vote  is  not  infrequently  made  with 

success. 

74.   The  Results 

In  Appendix  A,  at  the  end  of  this  volume,  may  be 
found  lists  of  all  votes  under  the  referendum  and 
initiative  that  have  taken  place  in  the  Confederation 
from  the  adoption  of  a  general  referendum  by  the 
constitution  of  1874  until  191"2,  and  in  the  cantons 
from  1893  to  1910  and  in  some  cases  to  1912.  A 
study  of  the  lists  throws  much  light  upon  the  actual 
working  of  these  institutions  in  the  country  where  they 
have  attained  by  far  their  greatest  development; 
but  in  drawing  conclusions  from  them  one  must  not 
forget  that  the  population  of  the  land  is  compara- 
tively small  and  homogeneous  and  that  wealth  is 
not  very  unevenly  distributed. 

In  the  Confederation  during  the  nineteen  years 
from  1893  through  February,  1912,  the  referendum 
was  used  on  twelve  constitutional  amendments,  of 
which  four  were  rejected;  and  on  as  many  other 
acts  passed  by  the  legislature,  of  which  six  were 
rejected.  An  inspection  of  these  measures  in  the 
Appendix  will  show  that  they  were  of  various  kinds, 
the  most  noticeable  tendency  being  a  hesitation, 
in  the  earlier  years,  at  the  rapid  process  of  centrali- 
zation. 

In  the  canton  of  Bern  —  one  of  those  where  all 
laws,  constitutional  and  ordinarj^  must  be  submitted 


166  Methods  of  Expressing  Public  Opinion  [§  74 

to  popular  vote  —  the  referendum  was  used,  in  the 
nineteen  years  from  1893  through  July,  1912,  on 
sixty-two  measures,  and  fifteen  of  them  were  de- 
feated. It  is  interesting  to  observe  what  these  last 
were.  Laws  on  insolvency  were  rejected  three  times 
before  a  statute  on  the  subject  was  accepted.  A 
law  requiring  inventories  of  estates  on  death  and  two 
laws  for  an  inheritance  tax  were  rejected  —  a  strik- 
ing evidence  of  wide  diffusion  of  property.  Among 
other  measures  defeated  were  laws  on  vaccination; 
for  the  preservation  of  game;  making  women 
eligible  to  school  boards;  and  lengthening  the  hours 
of  work  for  women. 

Zurich  also  has  the  general  compulsory  referendum, 
and  it  is  the  canton  in  which  by  far  the  largest 
number  of  popular  votes  have  taken  place.  In  the 
fifteen  years  covered  by  the  statistics  the  referendum 
has  been  used  on  eighty-one  measures,  of  which 
sixteen  were  rejected.  Among  those  so  voted  down 
were  a  law  on  the  salaries  of  members  of  the  executive 
council  and  of  the  highest  court  of  law;  inheritance 
taxes;  a  factory  act;  laws  requiring  state  inspection 
of  savings-banks;  raising  the  salaries  of  school  teach- 
ers ^  ;  creating  a  state  fire  insurance  office;  introducing 
proportional  representation;  and  as  usual  a  game  law. 

In  Aargau  twelve  laws  out  of  forty-five  were 
defeated  by  the  referendum;  among  them  a  measure 
for  taking  over  the  bank  by  the  state,  and  four  tax 
laws.^     In  Thurgau  the  results  are  similar;   fourteen 

^  Another  law  for  this  purpose  was  accepted  later  in  the  same  year. 
*  These  figures  and  those  for  several  of  the  other  cantons  cover  twenty 
years  through  1912. 


§  74]  Results  in  Switzerland  167 

laws  rejected  out  of  forty,  including  provisions  about 
salaries  of  public  officials,  subventions  to  railroads, 
state  fire  insurance,  the  general  registration  of  titles 
to  land,  and  the  care  of  drunkards.  In  the  Grisons 
eight  measures  out  of  thirty -nine  were  rejected  at 
the  referendum,  among  them  a  law  on  the  salaries 
of  primary  school  teachers,  inheritance  and  stamp 
taxes,  two  public  health  acts,  and  a  couple  of  game 
laws.  In  Rural  Basle  (through  June,  1912,)  sixteen 
were  so  defeated  out  of  forty -three,  the  people  show- 
ing themselves  ill  disposed  toward  school  laws,  and  as 
usual  towards  acts  relating  to  the  salaries  of  public 
officials  and  taxation.^  In  Schwyz  five  out  of  thirty- 
six  were  rejected,  including  laws  on  taxes  on  schools, 
and  insurance  on  cattle.  In  the  Valais,  apart  from 
measures  presented  as  alternatives,  there  were,  out 
of  twenty-five  distinct  matters,  only  three  cases  of 
rejection  at  the  referendum,  one  of  them  that  of  a 
resolution  fixing  the  salaries  of  public  officials.  In 
Solothurn  eight  measures  out  of  fifty-one  were  so  re- 
jected; in  Schaffhausen,  through  August,  1912,  four 
out  of  thirty-one,  two  of  them  being  proposals  to  re- 
vise the  constitution. 

In  Geneva,  through  December,  1912,  the  propor- 
tion is  very  different,  six  laws  out  of  ten  being 
defeated;  one  of  them  an  act  for  old  age  pensions 
which  was  beaten  by  a  majority  of  nearly  four 
to  one.  In  St.  Gall  the  proportions  of  rejections 
through  February,  1912,  is  still  larger,  only  five 
measures  out  of  eighteen  having  survived  the  ordeal; 

1  Even  an  act  on  the  taxation  of  shares  in  companies  was  accepted 
only  by  a  trifling  majority. 


168  Methods  of  Expressing  Public  Opinion  [§  74 

among  the  casualties  being  a  law  on  direct  taxes,  a 
game  law,  and  four  laws  on  the  insurance  of  houses 
and  of  cattle.  In  Lucerne  there  were  only  four  popu- 
lar votes  on  referenda,  two  tax  laws  being  accepted 
by  narrow  majorities,  an  amendment  to  the  constitu- 
tion being  ratified,  and  a  game  law  being  defeated. 
Finally,  in  Vaud  the  people  rejected  a  law  on  rest  from 
labor  on  Sunday  and  ratified  another  forbidding  the 
sale  of  absinthe.  In  none  of  the  other  cantons  does 
the  referendum,  as  distinguished  from  the  initiative, 
appear  to  have  been  used  for  the  last  twenty  years. ^ 

From  such  an  array  of  figures  it  is  clear  that  the 
referendum  in  Switzerland  has  been  effective;  that 
is,  it  has  caused  the  defeat  of  many  measures  that 
would  otherwise  have  been  enacted.  Whether  the 
popular  action  has  been  wise  or  not  is  a  question 
that  will  be  answered  differently  according  to  one's 
political  inclinations.  Opponents  of  the  institution 
will  not  find  evidence  that  its  effect  has  been  radical 
or  socialistic,  nor  its  advocates  encouragement  to 
believe  its  tendency  progressive.  On  the  contrary, 
the  result  has  been  on  the  whole  conservative; 
although  we  cannot  assume  that  this  would  be  true 
in  a  country  with  different  social  conditions. 

So  much  for  the  number  and  character  of  the  laws 
rejected  by  the  referendum  in  the  country  of  its 
origin.  Other  matters  relating  to  its  working  in 
practice,  such  as  the  size  of  the  vote  cast,  can  be 
considered  more  profitably  in  connection  with  its 
use  in  America. 

'  In  Basle  City  the  initiative  appears  to  be  used  with  the  same 
object.     (See  Appendix  A.) 


CHAPTER  XIII 

THE  REFERENDUM   IN   AMERICA 

Leaving  aside  the  pre-revolutionary  types  of 
direct  legislative  action,  the  modern  referendum,  or 
submission  of  measures  passed  by  the  representative 
body  to  all  voters  of  a  state,  has  been  introduced  in 
three  different  forms  at  as  many  periods  of  American 
history.  The  periods  have  to  some  extent  over- 
lapped, yet  the  movements  have  been  distinct  and 
may  be  described  separately.  We  can,  in  fact,  rec- 
ognize three  notable  waves  of  direct  popular  legisla- 
tion, each  rising  higher  than  the  last. 

75.  Referendum  on  Constitutional  Amendments 

The  first  appeared  in  the  form  of  submitting  state 
constitutions  to  the  people  for  ratification,  a  practice 
which  began  in  Massachusetts  in  1778  and  spread 
slowly  until  after  1820  almost  all  new  state  constitu- 
tions were  subjected  to  a  popular  vote.  The  uni- 
formity of  the  custom  has  been  seriously  interrupted 
on  two  occasions  only,  each  the  result  of  wholly 
exceptional  conditions;  first  in  the  southern  states 
during  the  stress  of  secession  and  reconstruction, 
and  later  in  a  number  of  the  same  states  during  their 
recent  effort  to  disfranchise  the  negroes.  Neither 
of  these  exceptions  showed  a  distrust  of  the  gen- 
eral principle,  which  may  be  regarded  as  a  firmly 

169 


170  Methods  of  Expressing  Public  Opinion  [§  75 

established  tradition  in  American  public  life.  The 
practice  has  been  applied  not  only  to  the  adoption 
of  a  new  constitution  but  also  to  particular  amend- 
ments. A  provision  to  that  effect  first  appeared  in 
Connecticut  in  1818,  and  was  copied  by  other  states 
until  it  became  almost  universal. 

That  the  referendum  on  constitutional  provisions 
has  had  a  substantial  effect  in  the  American  states 
there  can  be  no  doubt,  for  amendments  referred  to 
the  people  are  often  rejected.  It  has  been  asserted 
that  legislators  sometimes  pass  on  to  the  people 
amendments  in  which  they  have  little  faith,  in  order 
to  rid  themselves  of  uncomfortable  political  ques- 
tions; but  such  cases  can  form  only  a  small  part  of 
the  measures  rejected  by  popular  vote.  A  few  figures 
quoted  by  Dr.  Oberholzer  are  conclusive  upon  the 
freedom  with  which  the  public  refuses  its  assent  to 
thmgs  it  does  not  like.^  He  tells  us  that  the  Legisla- 
tive Bulletin  of  the  Xew  York  State  Library  for  the 
years  1895  to  1897  gives,  for  all  the  states,  one  hun- 
dred and  ten  constitutional  amendments  submitted 
to  popular  vote,  of  which  fifty  were  ratified  and  sixty 
rejected.  In  an  earlier  periodical  covering  the  six 
years  from  1886  to  1891  he  finds  one  hundred  and 
SLxteen  amendments  so  submitted,  fifty-four  of  these 
being  accepted  and  sixty-two  rejected.  In  Michigan, 
since  the  adoption  of  the  first  constitution  in  1835, 
there  had  been  submitted  to  the  people,  through  1908, 
no  less  than  eighty-seven  constitutional  questions, 
of  which  forty-eight  were  accepted,  and  thirty-six  re- 
jected; while  three  for  the  calling  of  constitutional 

^  The  Referendum  in  America,  pp.  163,  164. 


§  76]        The  Constitutional  Referendum         171 

conventions  failed  because  a  majority  of  all  those 
who  voted  at  the  election  was  required.^ 

In  Massachusetts  —  whose  legislature  reflects  pub- 
lic opinion  better  than  those  of  most  of  the  states,  and 
whose  people  have  voted  on  constitutional  questions 
longer  than  any  other  community  too  large  to  meet 
in  a  general  assembly  —  there  have  been  submitted 
to  popular  vote,  from  the  adoption  of  the  constitu- 
tion in  1780  through  the  year  1911,  sixty  such  ques- 
tions, of  which  forty-one  have  been  answered  in  the 
affirmative  and  nineteen  in  the  negative.^  A  survey 
of  these  sixty  cases  leaves  the  impression  that,  while 
the  people  were  sometimes  less  progressive  than 
their  representatives,  almost  all  the  popular  votes  of 
doubtful  wisdom  were  either  in  accord  with  the  best 
thought  of  the  time  or  were  afterwards  reversed. 
There  can  certainly  be  no  doubt  that  the  referendum 
on  constitutional  questions  retains  general  respect 
in  the  United  States,  for  the  institution  is  as  firmly 
rooted  as  ever  and  no  one  would  seriously  propose 
its  abolition. 

76.   Referendum  on  Special  Legislative  Acts 

The  constitutional  referendum  was  a  natural  result 
of  the  attempt  to  place  the  fundamental  law  on  a 
different  basis  from  ordinary  legislation.  The  second 
development  of  direct  popular  action  in  law  making, 

'  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
September,  1912,  pp.  155,  158. 

^  One  of  those  in  the  negative,  relating  to  the  introduction  of  woman 
suffrage,  was  merely  of  an  advisory  nature.  Lists  of  these  questions 
and  the  votes  cast  upon  them  may  be  found  in  the  Bulletin  of  the 
Statistics  Department  of  Boston  for  December,  1909,  December,  1911, 
and  January,  1912. 


172  Methods  of  Expressing  Public  Opinion  [§  76 

not  very  different  from  the  first  in  principle  or  in  its 
effects,  arose  from  a  practical  demand  for  a  check 
upon  the  legislature  when  dealing  with  matters  that 
involve  peculiar  temptations  or  the  pressure  of  local 
and  other  interests.  With  this  object  a  clause  was 
inserted  in  the  constitutions  of  several  states  provid- 
ing that  the  acts  of  the  legislature  upon  certain 
subjects  should  not  be  valid  unless  ratified  by  popular 
vote,  although  the  other  formalities  for  constitutional 
amendments  were  not  required. 

The  practice  began  about  the  middle  of  the  last 
century,  and  has  been  applied  to  the  selection  of 
sites  for  state  capitals  and  public  buildings,  to  the 
contracting  of  state  debts,  to  taxation  in  excess  of  a 
fixed  amount,  to  the  charters  of  banks,  to  the  exten- 
sion of  the  suffrage,  and  to  a  few  other  matters. 
It  has  been  used  mainly,  though  not  exclusively,  by 
the  newer  states,  and  was  devised  to  meet  difliculties 
keenly  felt  rather  than  as  an  expression  of  any  gen- 
eral political  principle.  While  it  has  been  retained 
in  those  communities  where  it  arose,  it  may  be 
considered  the  product  of  immature  conditions,  for 
it  has  shown  no  marked  tendency  to  spread  to  other 
parts  of  the  country  or  to  expand  over  new  subjects. 

In  connection  with  these  provisions  for  the  refer- 
ence of  particular  matters  to  popular  vote  one 
must  speak  of  the  resolutions  occasionally  passed 
by  legislatures,  without  constitutional  authority,  to 
refer  some  perplexing  question  to  the  people.  The 
procedure  might  perhaps  have  become  common  had 
not  the  weight  of  judicial  opinion  denied  the  right 
of   a   legislature   to   delegate   its  power   and   divest 


§  77]  The  General  Referendum  173 

itself  of  responsibility  for  legislation  by  shifting  it 
onto  the  shoulders  of  the  voters.^  It  can,  of  course, 
consult  them  informally,  and  it  can  make  the  local 
application  of  an  act  subject  to  its  adoption  by  the 
voters  of  the  place,  but  under  the  decisions,  it  cannot, 
in  the  absence  of  a  constitutional  provision,  make  the 
enactment  of  a  statute  depend  upon  ratification  by 
popular  vote. 

77.  The  General  Referendum 

The  third  and  most  comprehensive  movement 
for  the  referendum  is  very  recent.  It  takes  the  form 
of  a  general  provision  in  the  state  constitution  that 
upon  the  petition  of  a  certain  number  of  citizens 
any  law,  not  declared  urgent  by  the  legislature,  shall 
be  submitted  to  the  people.  Unlike  the  two  earlier 
phases  of  direct  popular  action,  which  are  native  in 
origin  and  grew  out  of  purely  indigenous  ideas  and 
conditions,  this  last  is  a  conscious  imitation  of  the 
Swiss  optional  referendum.  The  movement  has  had 
a  strongly  theoretical  tinge  and  has  been  urged  by 
associations  that  advocate  it  on  abstract  principles. 
Nevertheless,  the  main  force  that  has  given  it  mo- 
mentum with  the  public,  and  won  its  victory  in  a 
number  of  states,  has  been  dissatisfaction  with  the 
legislatures,  a  conviction  that  they  are  too  largely 
under  the  control  of  party  machines  allied  with 
moneyed  interests.     The  referendum  in  this  general 

^  See  Oberholzer,  The  Referendum  in  America,  chap,  viii,  for  a  dis- 
cussion of  this  point  and  a  collection  of  cases  thereon.  Such  a  submis- 
sion has  been  expressly  authorized  in  some  states  that  do  not  have  a 
general  referendum;  as,  for  example,  in  the  Michigan  Constitution  of 
1908. 


174  Methods  of  Expressing  Public  Opinion  [§78 

form  was  adopted  first  in  South  Dakota  in  1898; 
and,  in  the  fourteen  years  that  have  passed  since 
that  date,  by  Utah  (1900), ^  Oregon  (190^2),  Nevada 
(1904),  Montana  (1906),  Oklahoma  (1907),  Maine 
(1908),  Missouri  (1908),  Arkansas  (1910),  Colorado 
(1910),  Arizona  (1911),  California  (1911),  Xew 
Mexico  (1911),  Ohio  (1912),  Idaho  (1912),  Nebraska 
(1912),  Washington  (1912).  In  several  other  states 
constitutional  amendments  for  the  purpose  are  still 
pending.  As  yet  it  is  too  early  to  predict  what  the 
ultimate  effect  of  the  institution  will  be.  A  genera- 
tion must  pass  before  that  can  be  determined;  but 
the  use  that  has  actually  been  made  of  it  in  the  few 
years  during  which  it  has  been  in  operation  is  not 
the  less  interesting.  Appendix  B  to  this  volume 
contains  a  list  of  all  the  laws  to  which  it  has  been 
applied  through  1912,  and  with  them  are  included, 
but  separately  marked,  all  the  instances  of  popular 
votes  on  constitutional  amendments  and  on  meas- 
ures proposed  by  the  initiative  in  those  states  during 
the  same  period. 

78.   Actual  Use  of  the  General  Referendum 
(a)    The  Emergency  Clause 

The  referendum  on  general  legislation  has  been  in 
actual  use  even  a  shorter  time  than  the  date  of  its 
first  adoption  would  indicate,  for  although  it  was 
established  in  South  Dakota  in  1898  no  popular  vote 
took  place  under  it  there  until  ten  years  later;  nor 
was  it  used  in  any  state  before  1906;  and  since  in  al- 

^  But  the  statute  needed  to  put  it  into  operation  had  not  been  passed 
up  to  1912. 


§78] 


Results  in  America 


175 


most  all  the  states  that  have  adopted  it  general  elec- 
tions regularly  take  place  only  every  other  year,  the 
opportunities  for  submitting  statutes  to  the  people 
have  not  yet  been  numerous.  It  must  be  remembered 
also  that  vast  as  is  the  quantity  of  laws  passed  by 
an  American  legislature  in  the  brief  space  commonly 
allowed  for  its  session,  the  referendum  does  not 
apply  to  them  all.  The  constitutional  provisions  for 
its  exercise  usually  contain  a  clause  authorizing  the 
legislature  by  a  two  thirds  vote  to  declare  that  an 
act  is  of  urgent  importance  for  the  public  peace, 
health,  or  safety,  in  which  case  it  is  not  subject  to  a 
petition  for  a  popular  vote.  This  power  is  said  to 
have  been  abused  in  order  to  withdraw  measures 
from  the  referendum,  and  it  has  certainly  been  freely 
used.  Thus  in  South  Dakota  the  number  of  acts 
declared  urgent  in  recent  sessions  compared  with  the 
total  number  of  acts  passed  have  been  as  follows : 


Year 

Total  Acts  Passed 

Passed  with  Emergency  Clause 

1899 

126 

65 

1901 

185 

82 

1903 

223 

107 

1905 

173 

87 

1907 

249 

100 

1909 

295 

96 

Totals 

1251 

537 

In  six  sessions,  therefore,  covering  the  legislation  of  a 
dozen  years,  about  forty-three  per  cent,  of  the  acts 
passed  in  the  state  were  withdrawn  by  the  emergency 
clause  from  the  operation  of  the  referendum.  In 
other  states  the  proportion  has  been  smaller;  but  in 


176  Methods  of  Expressing  Public  Opinion  [§  78 

Oregon  the  charge  of  abuse  of  this  power  is  made/ 
and  the  Governor  is  said  to  have  vetoed  a  number  of 
bills  for  that  reason. ^ 

(6)    Number  of  Laws  Rejected 

The  legislative  output  in  America  is  so  great  that 
even  a  free  use  of  the  emergency  clause  leaves  a  vast 
number  of  acts  to  which  the  referendum  could  be 
applied.  But  in  view  of  the  fact  that  the  referen- 
dum has  been  adopted  in  states  where  distrust  of  the 
legislature  is  acute,  the  quantity  of  acts  rejected  by 
its  means  has  been  moderate.  Leaving  aside  con- 
stitutional amendments  and  popular  votes  provoked 
by  the  initiative,  the  only  cases  in  which  the  general 
referendum  has  been  used,  through  1912,  have  been 
as  follows: 


Per  cent. 

State 

Year 

BHl 

Result 

of  votes 

at 
election 

Arkansas 

1912 

An  Act  revising  the  tax  laws 

Rej. 

79.6 

Per  cent. 

of 

registered 

voters 

Arizona 

1912 

An  Act  to  create  a  lien  for 

labor  upon  mines  .... 

Ace. 

62.2 

An  Act  to  regulate  the  num- 

ber of  men  to  be  employed 

on  trains  and  engines    .   '. 

Ace. 

60.3 

An  Act  to  compel  all  engines 

to  carry  electric  headlights 

Ace. 

60.1 

1  Introductory  Letter  to  Suggested  Amendments  to  the  Constitu- 
tion of  Oregon,  Portland,  .\ugust  14,  1909,  p.  6. 
'  Arena,  September,  1908,  p.  146. 


§78] 


Results  in  America 


177 


Per  cent. 

state 

Year 

Bill 

Result 

of 

registered 

voters 

Arizona 

1912 

An  Act  to   forbid   employ- 
ment   of    locomotive  engi- 
neers without  three  years' 
service    as   firemen,    or    of 
conductors  without  service 

as  brakemen,  etc.     .    .    . 

Acc. 

60.6 

An  Act  to  limit  the  number 

of  cars  in  a  train 

Ace. 

60.9 

An  Act  to  limit  passenger 

fares  on  railroads     .... 

Acc. 

63.2 

An  Act  to  provide  for  semi- 

monthly payment  of  wages 

by   companies   and   public 

bodies 

Acc. 

62.1 

An  Act  to  forbid  the  shoot- 

ing of  game  without  a  li- 

1912 

cense 

Acc. 

62.2 

California 

An  Act  to  provide  for  a  regis- 

trar of  voters   

Rej. 

40.6 

An  Act  to  regulate  salaries 

and     fees     of     officers     in 

counties 

Rej. 

39.4 

An  Act  to  change  the  law  of 

officers  of  counties,  etc. 

Rej. 

39.4 

Per  cent, 
of  votes 

at 
election 

Colorado 

1912 

An  Act  for  eight  hours'  work 

for  miners 

Acc. 

38.2 

An  Act  to  place  the  branding 

of  cattle  under  the  charge 

of  the  State  Inspector   .    . 

Rej. 

28.6 

An  Act  providing  that  state 

officers  turn  over  receipts 

to  the  Treasurer  daily  in- 

stead of  monthly     .... 

Rej. 

24.8 

12 


178  Methods  of  Expressing  Public  Opinion  [§ 


Per  cent. 

Stat« 

Year 

mi 

Result 

of  votes 

at 
election 

Colorado 

1912 

An  Act  to  provide  summer 

schools  for  teachers     .    .    .    Rej. 

33.0 

An  Act  on  examinations  and 

certificates  for  teachers  .    . 

Rej. 

30.2 

An   Act   to   regulate   water 

rights  for  immigration    .    . 

Rej. 

26.8 

Maine 

1910 

An  Act  to  regulate  the  per- 
centage of  alcohol  in  pro- 

hibited liquor !  Rej. 

50.7 

An  Act  to  create  the  town  of 

Gorges '  Rej. 

38.6 

An  Act  for  a  bridge  at  Port-j 

land Rej. 

36.2 

1912 

An  Act  to  provide  for  uni- 
form ballot  boxes  and  the 
preservation  of  the  ballots 

cast Ace. 

75.1 

Montana 

1912 

An  Act  for  an  Asylum  bond, 

1908 

issue 

Ace. 

81.1 

Nevada 

An  Act  creating  a  state  con- 

stabulary   

Ace. 

77.9 

New  Mexico 

1912 

An  Act  for  a  state  highway 

bond  issue 

Ace. 

90.1 

Oklahoma  ^ 

1910 

Bryan  Election  Law     .    .    . 

Rej. 

73.3 

Oregon 

1906 

An  Act  making  an  increased 
appropriation  for  the  State 

University    . 

Ace. 

73.0 

1908 

An  Act  to  appropriate  money 

for  the  State  University.    . 

Ace. 

72.3 

An  Act  for  the  better  treat- 

ment of  prisoners  in  jail.    . 

Ace. 

77.3 

An  Act  to  appropriate  money 

for  armories  for  the  militia 

Rej. 

75.5 

'  Both  in  1908  and  1910  the  people  of  Oklahoma  were  consulted 
by  the  Legislature  about  the  creation  of  a  model  capital  city,  but  this 
was  informal,  not  for  the  ratification  of  a  law. 


§78] 


Results  in  America 


179 


• 

Per  cent. 

SUte 

Year 

BiU 

Result 

of  votes 

at 
election 

Oregon 

1908 

An  Act  to  allow  railroads  to 
give  free  passes  to  members 

of  the  legislature 

Rej. 

75.4 

1910 

An  Act  to  increase  the  salary 

of  a  district  judge    .    .    .    . 

Rej. 

70.4 

An  Act  to  create  a  branch  in- 

sane asylum,  referred  to  the 

people    by  the    legislature 

Ace. 

76.2 

An  Act  for  holding   a  con- 

stitutional convention,  re- 

ferred   under    the    consti- 

tutional   provision    to    the 

people    by    the    legislature 

Rej. 

69.1 

1912 

An  Act  giving  the  railroad 
commission  power  to  regu- 
late all  public  service  cor- 
porations   

An  Act  making  special  ap- 

Ace. 

78.6 

propriations  for  the  State 

University 

An  Act  making  an  appro- 

Rej. 

79.7 

priation  for  a  library  and 

museum  for  the  University 

South  Dakota 

1908 

An  Act  for  the  protection  of 
quail      

Rej. 

78.4   ' 

An  Act  to  forbid  theatrical 

Ace. 

85.7 

plays  on  Sunday 

An  Act  to  require  a  year's 

Ace. 

84.6 

residence  before  suit  for  di- 

vorce      

1910 

An  Act   to   require  electric 
headlights  on  locomotives . 

Ace. 

86.9 

An     Act     empowering     the 

Rej. 

83.0 

Governor  to  remove  delin- 

quent public  officers    .    .    . 

Rej. 

79.8 

180  Methods  of  Expressing  Public  Opinion  [§  78 


South  Dakota 


1910 


1912 


An  Act  dividing  the  state 
into  districts  for  the  elec- 
tion of  members  of  Con- 
gress   Rej. 

An  Act  to  provide  a  mihtary 
code  for  the  mihtia     ■    ■    ■    R^j- 

An  Act  for  Hcensing  embalm-' 
ers Rej. 

An  Act  for  a  direct  primary ■ 
law I  Ace. 

An  Act  to  require  electric 
headlights  on  locomotives .    Ace. 

An  Act  to  repeal  the  law  on 
damages  for  trespass  by 
animals Ace. 

An  Act  on  "city,  town,  or 
place  desiring  to  become  a 
candidate  for  countv  seat  "    Ace. 


71.6 
71.2 
79.5 
71.5 
74.7 

68.7 

60.1 


(c)  Character  of  Laws  Rejected 
It  will  be  observed  that  the  referendum  by  popular 
petition  was  effective  —  that  is,  resulted  in  the 
defeat  of  the  law^  —  in  twenty-three  cases,  and  it  is 
instructive  to  examine  these  with  a  view  to  discover 
how  far  they  were,  or  might  probably  be,  an  expres- 
sion of  a  general  public  opinion.  Take  first  the  five 
rejections  in  South  Dakota  in  1910.  There  were 
submitted  at  the  same  time  one  law  proposed  by 
initiative  and  six  amendments  to  the  constitution. 
Equity,  the  organ  for  direct  legislation,  says  of  this 
election,^  "A  'vote  no'  campaign  was  made,  and  they 

1  January,  1911,  p.  35. 


§78]  Results  in  America  181 

were  all  defeated,  except  possibly  one.  A  general 
*vote  no'  or  'vote  yes'  campaign  when  there  are 
so  many  measures  submitted,  some  of  which  were 
doubtless  meritorious,  is  not  discriminating.  It  is  said 
that  the  ballot  upon  which  the  referred  laws  were 
printed  was  six  feet  long,  in  fine  print;  the  amend- 
ment ballot  being  less  in  size,  and  the  candidate 
ballot  still  less."  The  result  was  that  a  constitu- 
tional amendment  in  relation  to  the  renting  of  public 
lands  was  accepted  and  everything  else  rejected. 
An  examination  of  the  votes  cast  upon  each  measure, 
set  forth  in  Appendix  B,  gives  the  impression  that 
the  voters  had  a  definite  opinion  upon  the  initiative 
about  intoxicating  liquors,  the  amendments  about 
woman  suffrage  and  renting  of  public  lands,  the 
referendum  about  the  militia,  and  perhaps  on  one 
or  two  more  questions.  The  other  measures  voted 
upon  were  not  of  such  a  character  as  to  render  a 
true  public  opinion  upon  them  improbable,  yet 
the  even  run  of  votes  for  and  against  them  makes 
it  seem  highly  unlikely  that  the  public  formed  a 
distinct  opinion  upon  each  of  them  separately. 
Curiously  enough  on  the  next  occasion,  two  years 
later,  every  measure  brought  before  the  people  of  the 
state  was  accepted  with  as  much  uniformity  as  every 
ordinary  law  submitted  to  them  had  been  rejected 
two  years  earlier.  The  measures  of  1912  were, 
indeed,  ratified  by  overwhelming  majorities,  and  the 
largest  majority  of  all  —  nearly  four  to  one  —  was 
obtained  by  a  law  for  headlights  on  locomotives  very 
similar  to  that  which  was  rejected  in  1910. 

In   Oklahoma   the   Bryan   Election   Law   was   a 


182  Methods  of  Expressing  Public  Opinion  [§  78 

political  measure,  alleged  to  be  passed  for  party 
purposes,  and  the  people  could  no  doubt  form  an 
opinion  upon  it  without  difficulty.  Their  ability  to 
Ho  so  can  be  assumed  also  in  the  cases  of  the  Maine 
law  regulating  the  amount  of  alcohol  in  prohibited 
liquors,  of  the  Oregon  law  appropriating  money 
for  armories,  and  certainly  of  the  law  permitting 
the  railroads  to  give  free  passes  to  legislators.  The 
people  of  California  may  have  had  a  deliberate 
opinion  also  on  the  three  laws  rejected  at  the  referen- 
dum in  191^2,  although  in  view  of  the  fact  that  only 
about  40  percent,  of  the  registered  voters  cast  their 
ballots  upon  them,  a  number  less  than  on  any  of  the 
other  measures  presented  at  the  same  time,  one  can- 
not assert  positively  that  the  people  as  a  whole  had 
such  an  opinion.  On  the  other  hand,  the  Maine 
laws  to  create  a  new  toT^mship  and  for  a  bridge  at 
Portland,  and  the  Oregon  law  to  increase  the  salary 
of  a  district  judge,  must  have  required  a  familiarity 
with  local  conditions  which  the  people  of  the  whole 
state  could  hardly  be  expected  to  possess  by  intui- 
tion; although  they  may  well  have  had  an  opinion 
that  special  legislation  of  this  kind  is  of  a  suspicious 
character,  and  that  the  laws  in  question  were  passed 
in  a  way  to  awaken  suspicion.  Nevertheless,  the 
people  of  Oregon  thought  they  had  an  opinion  upon 
the  salary  act,  for  they  voted  against  it  71,503  strong, 
a  figure  larger  than  half  the  registered  voters  in  the 
state,  and  larger  than  any  vote  previously  cast  for 
or  against  any  measure  since  the  referendum  was 
adopted.  Yet  it  is  noteworthy  that  the  official 
pamphlet  of  arguments  issued  by  the  state  govern- 


§78]  Results  in  America  183 

merit  contains  no  argument  either  for  or  against  this 
measure.  This  was  true  also  of  the  two  appropria- 
tions for  the  state  university  rejected  in  1912;  and 
in  that  case  the  issue  was  complicated  by  an  initiative 
presented  at  the  same  time  for  a  special  tax  in  favor 
of  the  university  which  involved  the  repeal  of  these 
appropriations. 

In  regard  to  the  two  local  acts  in  Maine  the  people 
themselves  evidently  did  not  consider  that  they  had 
opinions,  for  the  total  votes  cast  upon  those  acts 
were  only  38.6  and  36.2  per  cent,  of  the  votes  cast  for 
Governor  at  the  same  election;  the  percentage  of 
registered  voters  being,  of  course,  smaller  still.  Thus 
not  more  than  one  third  of  the  voters  felt  competent, 
or  cared,  to  express  an  opinion  about  them,  and  the 
people  who  voted  against  them  were  only  24.6  and 
21.2  per  cent,  of  those  who  cast  their  ballots  for 
Governor.  This  is  even  more  true  of  the  five  laws 
rejected  in  Colorado  in  1912,  on  which  the  total  votes 
ran  from  33  per  cent,  down  to  24.8  per  cent,  of  those 
cast  for  presidential  electors  at  the  same  time;  the 
largest  negative  vote  being  24.1  per  cent,  and  the 
smallest  14.3  per  cent,  of  that  for  presidential  elec- 
tors. In  the  case  at  least  of  these  two  laws  in 
Maine,  and  of  four  of  the  laws  of  South  Dakota 
(or  in  about  a  quarter  of  the  twenty-three  instances 
where  the  referendum  on  petition  has  been  effective) 
it  is  by  no  means  clear  that  the  people  of  the  whole 
state  formed  or  expressed  a  real  opinion  on  the  par- 
ticular measures  rejected.  Xor  would  it  be  safe  to 
assert  that  they  acted  on  a  deliberate  judgment  in 
rejecting  the   three  laws   in   California,  the  five  in 


184  Methods  of  Expressing  Public  Opinion  [§  79 

Colorado,  or  the  two  appropriations  of  1912  in  Ore- 
gon. All  these  added  together  make  sixteen  out  of 
the  twenty-three  rejections,  so  that  it  can  hardly  be 
certain  that  a  definite  public  opinion  existed  in  more 
than  about  one  quarter  of  the  laws  rejected.  This 
does  not  mean  that  the  defeat  of  the  measures  was  a 
misfortune,  for  there  can  be  on  shadow  of  doubt 
that  there  was  no  general  public  opinion  in  their 
favor,  and  the  delay  of  legislation  under  such  con- 
ditions is  usually  no  detriment  to  the  state. 

79.   Size  of  the  Vote  Cast 

Reference  has  been  made  to  a  phenomenally  small 
vote  on  certain  laws.  The  size  of  the  vote  has  in 
two  ways  a  bearing  upon  the  expression  of  a  true 
public  opinion  by  the  referendum.  First,  those 
persons  who  go  to  the  polls  and  cast  their  ballots  for 
Governor,  but  do  not  make  a  mark  for  or  against  the 
measure,  may  be  assumed  to  have  no  opinion,  or  no 
serious  opinion,  thereon.  Men  may,  and  often  do, 
vote  without  having  a  real  personal  opinion  on  that 
particular  measure;  but  they  surely  do  not  fail  to 
mark  their  ballots  when  they  have  a  decided  opinion. 
Second,  the  size  of  the  vote  is  a  measure  of  public 
interest  in  the  matter;  and  hence  an  indication  of 
the  extent  to  which  the  people  are  likely  to  have 
studied  the  facts  necessary  for  a  decision,  and 
thereby  formed  a  genuine  opinion  about  the  law. 
A  decision  by  a  majority  of  the  votes  actually  cast 
upon  a  question  is  doubtless  the  most  natural 
method  to  pursue  in  the  case  of  a  popular  vote,  but 
that   such   a   result    expresses   public   opinion   may 


§80]        Size  of  the  Vote  in  Switzerland        185 

sometimes  be  a  political  fiction  rather  than  a  fact. 
That  is  not  necessarily  a  condemnation  of  the  proce- 
dure, for  politics  is  at  best  an  inexact  art  and  must 
work  by  the  nearest  possible  approximation ;  yet  the 
probable  accuracy  of  the  approximation  is  a  factor 
to  be  taken  into  account. 

80.  The  Vote  Cast  in  Switzerland 

In  the  list  of  popular  votes  in  Switzerland  (printed 
in  Appendix  A)  the  number  of  registered  voters 
appears  for  several  of  the  cantons  as  well  as  for 
the  Confederation  since  1893,  and  the  proportion  of 
votes  cast  is  surprisingly  small.  In  the  Confedera- 
tion a  majority  of  the  registered  voters  cast  valid 
votes  at  the  referendum  in  only  half  the  cases,  in 
twelve  out  of  twenty-four^ ;  in  Bern  in  ten  cases  out 
of  sixty-two^;  in  Rural  Basle  in  six  out  of  forty- 
three^  ;  in  Solothurn  in  twenty  out  of  fifty-one;  while 
in  not  one  of  the  twenty-five  cases  in  the  Valais  was 
a  majority  of  the  registered  vote  cast.  In  Zurich 
the  proportion  is  far  larger,  sixty-eight  out  of  eighty- 
one,'*  the  normal  being  a  trifle  over  55  per  cent,  of  the 
registered  voters,  a  result  due,  no  doubt,  to  imposing 
a  fine  for  failure  to  deposit  a  ballot,  —  although 
not  for  omission  to  fill  out  the  blanks  therein.  In 
Geneva  and  Vaud  the  normal  vote  was  about  the 
same;  and  in  Schaffhausen  it  ran  even  higher,  from 
65  to  75  per  cent,  of  the  registered  voters. 

^  In  these  and  the  following  statistics  for  Switzerland  constitutional 
amendments  are  included,  but  measures  proposed  by  initiative  are  not. 
A  majority  of  the  registered  voters  cast  their  ballots  on  five  federal 
initiatives  out  of  eight.  '  And  on  the  only  initiative. 

'  On  four  initiatives  out  of  nine.       *  On  ten  initiatives  out  of  eleven. 


186  Methods  of  Expressing  Public  Opinion  [§  80 

The  percentage  of  votes  cast  often  varies  very 
much  on  different  measures.  In  the  Confederation 
it  runs  from  79.1  down  to  34.3;  in  Bern  from  63.3 
down  to  21.8;  in  Zurich  from  76.4  down  to  31.1; 
in  Rural  Basle  from  73.5  down  to  24.0.  In  Solo- 
thurn  from  82.1  down  to  21.4;  and  in  the  Valais  from 
49.8  down  to  21.  In  Aargau,  Thurgau,  St.  Gall, 
Schaffhausen,  and  Geneva,  on  the  other  hand,  the 
number  of  votes  cast  shows  comparative!}^  little 
variation ;  but  in  other  cantons,  where  the  number  of 
registered  voters  is  not  given,  the  differences  are  very 
large;  and  in  Schwyz  the  number  ran  in  1895  and 
1898  from  1,243  to  12,328. 

Clearly  in  some  questions  the  people  took  little 
interest,  and  the  probability  that  the  result  expressed 
a  real  public  opinion  is  therefore  small.  To  take 
extreme  cases:  Is  the  legislature  of  Zurich  less 
likely  to  have  represented  public  opinion  correctly  in 
increasing  the  salaries  of  school  teachers  than  the 
popular  vote  at  a  referendum  where  31.74  per  cent, 
of  the  registered  voters  cast  their  ballots  against  the 
law,  31.50  in  its  favor,  and  36.76  per  cent,  did  not 
vote  at  all.^  or  the  legislature  of  Schwyz  when  it 
passed  a  law  about  highways  which  was  rejected  by 
a  vote  of  1,682  to  1,593,  the  total  number  of  votes 
against  the  bill  being  only  13.54  per  cent,  of  the 
number  cast  four  years  earlier  on  the  question  of 
adopting  a  new  cantonal  constitution.^  Or  again, 
what  value,  as  an  evidence  of  popular  approval,  had 
a  ratification  of  a  law  on  the  organization  of  the 
police  in  Bern,  when  17.4  per  cent,  of  the  registered 
voters  cast  their  ballots  for  it,  17.2  per  cent,  against 


§81]  Size  of  the  Vote  in  America  187 

it,  and  65.4  per  cent,  did  not  vote.^  Do  not  these 
figures  show  that  the  people  as  a  whole  did  not  really 
have  an  opinion  on  the  measures  in  question  .^^ 

Such  instances  do  not  condemn  the  institution, 
but  they  shake  our  faith  in  a  popular  vote  as  an 
infallible  index  of  public  opinion.  They  make  one 
feel  that  the  referendum  does  not  always  accomplish 
the  object  for  which  it  is  designed;  and  what  is  true 
in  these  extreme  cases  is  also  true  to  a  less  extent 
in  many  others.  The  referendum,  like  every  other 
human  agency,  is  an  imperfect  instrument,  that 
will  work  well  only  when  used  on  the  appropriate 
material. 

81.  The  Vote  Cast  in  America 

In  the  United  States,  as  in  Switzerland,  the  vote 
on  measures  submitted  to  the  people  is  habitually 
smaller  than  for  the  principal  public  officers  elected 
at  the  same  time.  Dr.  Oberholzer,  finding  that  in 
general  about  one  half  as  many  voters  cast  their 
ballots  on  constitutional  amendments  as  for  presiden- 
tial electors,  says  that  only  about  half  of  all  those 
who  know  their  own  minds  respecting  candidates 
seem  to  care  anything  about  measures.^  In  Massa- 
chusetts, for  which  statistics  have  been  carefully 
compiled,  it  appears  that,  from  the  adoption  of  the 
constitution  of  1780  through  1911,  sixty  constitu- 
tional questions  have  been  submitted  to  the  people  of 
the  state,  2  and  the  votes  cast  upon  them  have  varied 
from  a  number  slightly  in  excess  of  those  polled  for 

^   The  Referendum  in  America,  ed.  of  1900,  p.  168. 
2  One  of  these,  on  the  introduction  of  woman  suffrage,  was  merely 
of  an  advisory  nature. 


188  Methods  of  Expressing  Public  Opinion  [§  81 

Governor  in  the  same  year  down  to  one  thirtieth  part 
thereof,  two  amendments  to  the  constitution  being 
actually  carried  with  less  than  4,500  affirmative  votes 
although  nearly  170,000  were  cast  in  the  election  of 
the  Governor.  On  ten  questions  the  number  of  votes 
polled  was  less  than  one  fifth  of  those  cast  in  the 
election;  on  forty-two  it  was  less  than  two  thirds; 
and  it  must  be  remembered  that  on  the  average  only 
three  quarters  of  the  registered  voters  cast  their 
ballots  even  for  Governor,  while  a  considerable  num- 
ber of  qualified  citizens  are  not  registered. 

In  Michigan,  where  eighty-seven  constitutional 
questions  have  been  submitted  to  the  people  since 
the  adoption  of  the  constitution  in  1835,  there  is  a 
similar  variation  in  the  size  of  the  vote  cast.^  One 
amendment  was  adopted  by  3,180  affirmative  votes, 
while  130,818  were  cast  at  the  election.  On  eighteen 
questions  the  votes  polled  were  less  than  one  fifth 
of  those  cast  for  state  officers,  or,  when  no  state 
officers  were  elected,  less  than  one  fifth  of  those 
usually  so  cast  at  the  period;  and  in  forty-seven,  or 
more  than  half  of  the  cases,  they  were  less  than  one 
half  of  the  votes  so  cast. 

If  now  we  turn  to  the  states  which  have  recently 
adopted  a  general  referendum,  the  first  thing  that 
strikes  us  is  the  fact  that  there  is  no  marked  difference 
in  the  size  of  the  popular  vote  cast  on  constitutional 
amendments  and  on  ordinary  laws.  The  vote  on 
these  last  has  certainly  not  been  the  smaller;  nor 
is  that  surprising.     A   law  against  which   a  petition 

1  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
September,  1912,  pp.  155-158. 


§81]  The  Vote  Cast  in  America  189 

has  been  filed  is  one  that  excites  repugnance,  and 
is  therefore  in  some  degree  contentious;  whereas  a 
constitutional  amendment,  submitted  automatically, 
may  in  some  cases  provoke  no  serious  antagonism. 

Taking  the  votes  at  the  referendum  on  ordinary 
laws  we  find  that  they  run  all  the  way  from  90.1  per 
cent,  of  the  vote  cast  at  the  election  in  New  Mexico 
in  1912  down  to  24.8  per  cent,  in  Colorado  in  the 
same  year.  In  most  of  the  states  the  number  of 
votes  cast  on  the  different  measures  presented  at  any 
one  time  does  not  vary  greatly,  showing  that  the 
people  who  feel  competent  to  express  an  opinion  on 
one  law  voted  as  a  rule  on  all  the  others  also;  but 
the  variations  from  year  to  year  are  sometimes 
considerable.  In  Maine,  for  example,  the  average 
percentage  of  those  taking  part  in  the  election  in 
1910  who  voted  at  the  referendum  was  41.8;  whereas 
in  1912  it  was  75.1.  In  South  Dakota  it  was  85.7 
in  1908,  77.0  in  1910,  and  68.75  in  1912.  In  Oregon 
it  has  been  very  uniform,  ranging  between  72  and  79. 
This  is  not  far  from  the  general  average  in  the  differ- 
ent states,  which  may  be  taken  as  not  more  than  75 
per  cent.^ 

From  these  figures  it  would  seem  that  the  votes 
cast  are  decidedly  larger  than  in  Switzerland,  but  it 
must  be  remembered  that  the  percentage  is  of  the 
votes  cast  at  the  election  of  public  officers,  not  of 
the  registered  voters  as  in  Switzerland.  To  bring 
them  to  this  last  basis  —  the  most  significant  for 
their  relation  to  public  opinion  —  it  is  necessary  to 

^  These  figures  do  not  include  constitutional  amendments  or  the 
initiative. 


190  Methods  of  Expressing  Public  Opinion  [§  81 

reduce  the  figures  just  given  by  a  fifth  or  a  quarter. 
Reducing  them  by  a  fifth,  the  average  would  be  about 
sixty  per  cent,  of  the  registered  voters.  This  is 
somewhat  better  than  the  average  in  Switzerland, 
but  it  is  not  very  large.  Now  if  only  three  fourths 
as  many  people  cast  their  votes  on  measures  as  for 
the  chief  public  officers  it  shows  that  there  are  one 
third  part  more  people  who  are  interested  in  or  feel 
competent  to  vote  for  candidates  than  measures. 
This  would  seem  to  indicate  that  there  is  a  more 
general  public  opinion  on  the  election  of  officers  than 
at  the  referendum,  although,  of  course,  it  by  no 
means  follows  that  the  men  elected  will  represent 
public  opinion  more  truly  than  does  direct  legislation. 
The  small  size  of  the  vote  has  the  more  significant 
bearing  on  the  question  of  a  real  public  opinion  where 
the  majority  is  narrow.  How  much  value,  for  ex- 
ample, as  an  indication  of  public  opinion,  had  the 
ratification  in  1908  of  the  appropriation  for  the 
state  university  in  Oregon  when  37.8  per  cent,  of 
the  citizens  actually  present  at  the  polls  voted  for 
it  and  34.8  per  cent,  against  it;  or  the  acceptance 
in  the  same  year  of  the  law  closing  the  theatres  on 
Sunday  in  South  Dakota  when  of  the  voters  present 
4:2.5  per  cent,  favored  and  42.1  per  cent,  opposed  it.^ 
A  still  stronger  instance  was  presented  in  Colorado 
in  1912  where  the  law  on  the  branding  of  cattle  was 
rejected  by  14.35  per  cent,  against  14.22  per  cent., 
while  of  the  voters  actually  taking  part  in  the  election 
five  times  as  many  failed  to  express  any  opinion  on 
this  measure  as  voted  either  for  or  against  it.  We 
cannot  repeat   too  often   that  such  results  are  not 


§  8"!]        Attempts  to  Stimulate  Opinion        191 

necessarily  a  condemnation  of  the  referendum.  They 
do  not  prove  that  a  popular  vote  is  not  under  the 
circumstances  the  wisest  and  best  method  of  decid- 
ing a  question;  but  they  show  that  a  vote  of  this 
kind  cannot  always  be  regarded  as  vox  populi. 

82.  Attempts  to  Stimulate  Opinion 

Efforts  have  sometimes  been  made  to  enhance 
the  value  of  the  popular  verdict,  by  increasing  the 
participation  of  the  voters,  or  by  furnishing  them 
with  better  means  of  forming  an  opinion;  and  these 
attempts  have  been  in  a  measure  successful.  In 
Zurich,  for  example,  a  fine  is  imposed  for  not  deposit- 
ing a  ballot,  though  not  for  failing  to  enter  a  vote 
upon  all  the  questions  therein.  We  have  seen  that 
this  results  in  a  larger  vote  there  than  in  other 
cantons,  yet  the  blanks  in  the  ballots  have  been 
discouragingly  numerous,  running  all  the  way  from 
4.5  per  cent,  to  39  per  cent,  of  the  ballots  cast,  the 
average  being  almost  exactly  20  per  cent.^  In  other 
words,  about  one  fifth  of  the  voters  whose  ballots  were 
actually  placed  in  the  box  felt  incompetent  to  form 
an  opinion  on  the  measures  submitted,  or  took  too 
little  interest  in  them  to  make  a  mark  on  the  sheet 
of  paper  in  their  hands. 

In  Oregon,  on  the  other  hand,  the  state  has  wisely 
attempted  to  educate  the  voters  by  furnishing  them 
with  arguments  for  and  against  each  measure.  These 
arguments  are  prepared  voluntarily  by  the  per- 
sons interested,  but,  together  with  the  full  text  of 

^  In  the  case  of  one  initiative  the  blanks  ran  as  high  as  58.5  per  cent, 
of  the  votes  cast. 


192  Methods  of  Expressing  Public  Opinion  [§  82 

the  measures,  are  printed  by  the  government  in  a 
pamphlet  which  is  then  sent  to  everj^  voter.  The 
pamphlet  for  1910  contained,  apart  from  the  index, 
20'-2  octavo  pages  of  fine  print.  Yet  the  arguments 
were  by  no  means  complete.  Of  the  thirty-two  meas- 
ures submitted  (including  those  proposed  by  initia- 
tive and  all  constitutional  amendments)  only  twelve 
had  arguments  both  jpro  and  con;  fifteen  more  having 
arguments  in  favor  alone;  four  opposing  arguments 
alone;  and  on  one  there  was  no  argument  at  all. 
This  last,  the  sole  law  against  which  a  petition  for 
a  referendum  was  filed,  was  that  for  increasing  the 
salars'  of  a  judge,  and  was  rejected.  In  1912  the 
pamphlet  contained,  apart  from  the  index  and  local 
matters  submitted  only  to  the  voters  of  Portland, 
252  pages.  Of  the  thirty-eight  measures  covered 
thereby,  thirteen  had  arguments  on  both  sides;  six 
only  in  favor;  six  only  against;  while  thirteen  had 
no  arguments  at  all.  Thus  the  excellent  plan  of 
furnishing  the  people  with  arguments  by  no  means 
accomplishes  its  object  completely.  The  results  do 
not  show  that  absence  of  argument  was  due  to  con- 
fidence in  the  result,  or  on  the  other  hand  that  the 
arguments  had  a  decisive  effect.^ 

^  Thirty-two  measures  were  submitted  in  1910. 

Of  the  twelve  that  had  arguments  pro  and  con,  four  were  accepted 
and  eight  rejected. 

Of  the  fifteen  that  had  arguments  pro  alone,  five  were  accepted  and 
ten  rejected. 

Of  the  four  that  had  arguments  con  alone,  all  were  rejected. 

The  one  that  had  no  argument  was  rejected. 

Of  the  thirty-eight  public  general  measures  in  the  pamphlet  for  1912, 
one  was  not  placed  on  the  ballot. 

Of  the  thirteen  that  had  arguments  pro  and  con,  three  were  accepted 
and  ten  rejected. 


§83]  The  Local  Referendum  193 

The  comparatively  small  size  of  the  vote  cast  at 
the  referendum  everywhere,  and  the  incomplete  suc- 
cess of  efforts  to  stimulate  a  larger  vote  or  a  more 
general  consideration  of  the  questions  presented 
have,  as  we  have  seen,  an  important  bearing  on  the 
trustworthiness  of  the  popular  vote  as  an  expression 
of  a  genuine  public  opinion.  We  shall  recur  to  this 
again  after  discussing  the  initiative. 

83.  The  Local  Referendum 

A  general  referendum  on  ordinary  laws  in  America 
has  been  adopted  by  a  dozen  states,  but  a  local 
referendum  on  local  matters,  or  on  the  local  appli- 
cation of  general  laws,  has  spread  far  more  rapidly 
and  been  adopted  much  more  freely  through- 
out the  country.  This  is  not  unnatural,  because 
some  of  the  objections  made  to  the  general  referen- 
dum do  not  apply,  or  apply  with  less  force,  to  local 
popular  votes.  In  fact  the  two  things  are  not 
precisely  the  same.  The  term  "local  referendum" 
itself  is  used  for  at  least  three  distinct  processes: 
one  is  referring  a  special  local  act  passed  by  the 
legislature  to  the  people  of  the  place  for  acceptance 
or  rejection;  another  is  making  the  local  application 
of  a  general  law  depend  upon  its  adoption  by  the 
people  of  each  city,  town,  or  county;  and  a  third  is 
giving  to  the  people  of  a  city  a  right  to  reject  by 

Of  the  six  that  had  arguments  'pro  alone,  none  were  accepted  and 
six  rejected. 

Of  the  six  that  had  arguments  con  alone,  one  was  accepted  and  five 
rejected. 

Of  the  twelve  that  had  no  arguments,  seven  were  accepted  and  five 
rejected. 

13 


194  Methods  of  Expressing  Public  Opinion  [§  83 

popular  vote  a  measure  passed  by  their  own  local 
council. 

\Mien  the  local  referendum  means  a  reference  of 
a  special  act  for  acceptance  to  the  citizens  of  the 
place  it  is  not  an  appeal  from  the  representative  body 
to  the  people  it  represents,  but  from  the  representa- 
tives of  the  state  as  a  whole  to  the  part  affected. 
If  the  Legislature  of  Pennsylvania,  for  example, 
enacts  a  charter  for  Pittsburg  subject  to  ratification 
by  the  inhabitants,  this  is  not  asking  the  people  of 
that  city  whether  their  wishes  have  been  rightly 
expressed  by  their  representatives,  for  the  members 
of  the  Legislature  from  Pittsburg  may  have  opposed 
the  bill.  The  contrast  is  primarily  between  central- 
ized government  and  local  home  rule,  not  between 
representative  and  direct  democracy.  The  question 
whether  the  act  shall  be  referred  to  the  people  or  the 
council  of  the  city  is,  indeed,  one  of  direct  democracy, 
but  as  such  it  touches  local  not  state  government, 
the  relation  of  the  council  to  the  citizens,  not  that 
of  the  legislature  to  the  people  of  the  state.  This 
distinction  must  be  borne  in  mind;  because  state- 
wide popular  votes  on  local  questions,  like  that  on 
the  Portland  Bridge  Act  in  Maine  and  like  several 
initiatives  on  local  matters  in  Oregon,  while  in  accord 
with  the  principle  of  the  general  state  referendum, 
are  as  much  violations  of  the  principle  of  the  local 
referendum  and  local  autonomy  as  if  the  legislature 
alone  had  acted. 

The  same  distinctions  apply  to  making  the  local 
application  of  a  general  law  depend  upon  its  adoption 
by  the  people  of  each  local  community;  the  common- 


§84]      Advantages  of  Local  Referendum      195 

est  example,  and  a  typical  one,  being  local  option  in 
regard  to  the  sale  of  liquor.  Here  again  there  is  no 
appeal  from  the  representatives  to  their  constituents, 
but  the  conferring  of  power  over  a  matter  deemed  of 
local  interest  to  the  locality  concerned  to  be  exercised 
by  local  popular  vote. 

The  third  form  of  the  local  referendum  —  that  of 
giving  to  the  people  of  a  city  the  right  to  reject  by 
popular  vote  measures  passed  by  their  own  local 
council  —  is  a  pure  instance  of  direct,  as  compared 
with  representative,  democracy,  But  it  may  be 
observed  that  while  the  general  principle  involved  is 
the  same  as  in  the  case  of  a  referendum  to  the  people 
of  a  whole  state,  it  is  applied  to  a  more  limited  class 
of  questions  on  a  smaller  scale;  and  if  our  analysis  of 
public  opinion  is  correct,  the  difficulty  with  the  prob- 
lem of  direct  popular  government  lies  not  so  much 
in  the  general  principle  as  in  the  application. 

84.   Advantages  of  the  Local  Referendum 

One  of  the  objections  raised  against  the  state-wide 
referendum  which  does  not  apply  to  local  popular 
votes  is  the  danger  of  confusing  constitutional  and 
other  laws.  It  is  urged  that  if  all  laws  are  sanctioned 
alike  by  popular  vote,  people  will  cease  to  regard  as 
peculiarly  sacred  those  fundamental  principles  that 
are  embodied  in  the  constitution.  Many  of  the 
advocates  of  direct  legislation  do  not  regard  such  a 
result  with  disfavor.  They  think  that  the  sanctity 
of  the  constitution  has  been  carried  too  far,  and  that 
it  would  be  well  to  reduce  it,  if  not  to  abolish  it 
altogether.     Other  people  feel  that  the  fundamental 


196  Methods  of  Expressing  Public  Opinion  [§  84 

principles  of  public  life  ought  to  be  held  in  peculiar 
reverence,  and  changed  only  after  careful  and  mature 
deliberation;  that  changes  once  made  ought  to 
endure;  that  we  ought  not  to  experiment  lightly 
with  the  foundations  of  civilized  society.  They 
believe  that,  while  there  are  many  ways  of  insuring 
political  stability,  the  American  method  of  doing 
so  lies  in  a  distinction  between  constitutional  and 
other  laws.  A  constitution,  they  say,  should  be 
readjusted  to  the  fundamental,  not  the  superficial, 
changes  in  society.  The  compass  follows  the  slow 
movement  of  the  magnetic  pole,  and  a  constitution 
should  be  a  compass  not  a  weathercock.  Now  this 
objection,  whatever  it  may  be  worth,  clearly  does  not 
apply  to  the  local  referendum. 

Again,  the  referendum  for  local  affairs  is  applied  on 
a  smaller  scale,  and  the  smaller  the  scale  the  greater 
the  opportunity  for  discussion  and  hence  the  forma- 
tion of  a  true  public  opinion.  The  questions  presented, 
also,  are  more  limited,  more  likely  to  be  simple  and 
familiar  to  the  mass  of  voters,  who  are  therefore  in  a 
better  position  to  weigh  their  merits.  That  this  is 
in  fact  the  case  may  be  seen  in  the  relative  size  of  the 
vote  cast  on  state  and  local  questions  by  the  citizens 
of  Boston.  The  figures  have  been  compiled  by  the 
Statistics  Department  of  the  city  for  twenty-two 
years  from  1890  through  1911,^  and  show  that  a  de- 
cidedly larger  proportion  of  the  people  were  inter- 
ested in,  or  felt  competent  to  express  an  opinion 
upon,  local  than  state-wide  measures.  It  appears 
that  the  average  percentage  of  registered  voters  in 

^  Monthly  Bulletin  for  December,  1911,  and  January,  1912. 


§  84]      Advantages  of  Local  Referendum       197 

Boston  who  voted  upon  the  thirteen  state  questions, 
though  larger  than  the  average  percentage  in  the 
rest  of  the  state,  was  only  52.44,  while  the  average 
percentage  on  the  seven  city  questions  voted  upon 
at  state  elections  was  63.16;  and  that  on  six  such 
questions  submitted  at  city  elections,  where  the 
attendance  is  naturally  less  than  at  state  or  national 
elections,  the  average  percentage  was  59.81.^  It 
may  be  added  that  eight  of  the  votes  at  city  elec- 
tions occurred  when  there  was  no  election  of  mayor, 
and  hence  the  attendance  was  unusually  small; 
whereas  at  every  state  referendum  a  governor  was 
elected.  All  this  enhances  very  much  the  signifi- 
cance of  the  larger  vote  on  local  matters.  Such  a 
result  goes  far  to  justify  a  more  general  confidence 
in  the  local  referendum  as  an  expression  of  a  real 
public  opinion. 

^  One  question,  that  of  incorporating  the  Elevated  Railway  Com- 
pany, presented  on  a  special  occasion  when  no  election  was  held,  is  not 
included.  The  vote  on  it  was  only  33.41  per  cent.  —  far  the  lightest 
vote  on  any  of  the  city  measures.  Including  this,  the  average  vote  on 
city  questions  at  city  elections  was  56.57  per  cent.  These  figures  do 
not  include  the  annual  votes  on  licensing  the  sale  of  liquor  which  take 
place  at  city,  not  state,  elections,  and  where  the  percentage  of  the 
registered  vote  cast  has  averaged  62.63  in  the  twenty-one  years  covered 
by  these  statistics. 


CHAPTER  XIV 

THE  IXITL\TIVE 

85.  The  Nature  of  the  Initiative 

The  referendum  is,  after  all,  negative.  It  is  an 
instrument  whereby  the  people  can  reject  an  act 
passed  by  their  representatives  which  they  do  not 
like.  It  enables  them  to  take  the  same  part  in 
legislation  that  the  governor  does  by  his  veto  —  a 
power,  by  the  way,  which  no  public  officer  possesses 
in  Switzerland  —  but  it  gives  them  no  power  to 
legislate  themselves.  For  this  last  purpose  the  initia- 
tive was  devised  by  the  Swiss,  and  has  recently  been 
copied  in  America  by  most  of  the  states  that  have 
adopted  the  general  referendum  on  ordinary'  statutes. 
It  empowers  a  certain  number  of  voters  to  draft  a 
law  and  demand  a  popular  vote  upon  it  without 
regard  to  the  opinion  of  the  legislature.  Herein  it 
differs  essentially  from  the  right  of  petition.  Any 
citizen  can  petition  the  legislature,  and  in  America 
he  can,  as  a  rule,  appear  before  a  committee  of  that 
body  to  argue  for  his  bill.  Many  useful  laws  origi- 
nate in  this  way;  but  if  the  legislature  refuses  to 
act,  the  bill  is  dead.  Now  the  specific  object  of  the 
initiative  is  to  open  another  channel  for  lawmaking, 
to  enable  citizens  to  draft  a  bill  and  appeal  directly 
to  the  people  on  it  when  the  legislature  declines  to 

198 


§  86]    Results  of  Initiative  in  Switzerland     199 

enact  it.  The  procedure  varies,  but  this  is  the  essen- 
tial object  in  all  cases,  and  for  our  purpose  the  first 
question  is  how  far  there  is  a  public  opinion  in  favor 
of  measures  to  which  the  legislature  is  opposed. 

86.  Results  in  the  Swiss  Confederation 

The  initiative  was  introduced  in  a  couple  of  Swiss 
cantons  as  early  as  the  middle  of  the  last  century, 
and  after  1869  it  spread  rapidly,  until  for  a  score  of 
years  it  has  existed  in  some  form  in  every  canton  but 
one.  In  1891  it  was  adopted  also  for  amendments 
to  the  federal  constitution,  but  it  does  not  apply  to 
other  federal  laws.^  An  inspection  of  the  tables  in 
Appendix  A  will  show  the  extent  of  its  use  and  the 
cases  in  which  it  has  been  used  with  success.  Eight 
attempts  have  been  made  to  amend  the  federal 
constitution  by  this  process,  of  which  two  only  have 
been  successful.  The  first  of  these,  in  1893,  forbade 
the  slaughter  of  cattle  by  bleeding,  chiefly  in  order 
to  prevent  the  manufacture  of  kosher  meat;  and 
the  second,  in  1908,  forbade  the  sale  of  absinthe. 
The  first,  although  supported  on  the  ground  of 
cruelty  to  animals,  certainly  sprang  from  race 
prejudice;  the  second  was  a  prohibitory  law,  on 
which  people  always  disagree,  and  in  fact  the  national 
legislature  approved  it.  It  may  be  observed  that  in 
neither  case  did  a  majority  of  the  registered  voters 
take  part  in  the  vote.^ 

^  At  an  earlier  date  the  initiative  could  be  used  to  provoke  a  complete 
revision  of  the  federal  constitution,  but  it  proved  useless. 

^  An  amendment  on  the  use  of  water-powers  was  proposed  by  initia- 
tive, but  withdrawn  when  the  legislature  drew  up  a  measure  of  its  own 
which  was  ratified  at  the  referendum  in  1908. 


200  Methods  of  Expressing  Public  Opinion  [§  87 

87.   Results  in  the  Cantons 

In  the  canton  of  Bern  the  initiative  was  set  in 
motion  nine  times  from  1893  through  July,  1912, 
and  in  but  four  of  them  with  success.  These  four 
abolished  compulsory  vaccination;  provided  for  im- 
provement in  cattle  breeding;  changed  the  price  of 
salt;  and  introduced  the  election  of  the  executive 
council  of  the  canton  bj'  the  people.  It  has  not  been 
used  at  all  for  the  last  six  years.  In  the  democratic 
canton  of  Zurich,  where  the  votes  on  the  referen- 
dum have  been  more  numerous  than  elsewhere, 
the  initiative  has  been  put  in  operation,  from  1893 
to  1908,  in  eleven  cases  and  once  with  success.^  It 
was  a  proposal  in  1894  to  amend  the  cantonal  con- 
stitution by  providing  that  the  apportionment  of 
members  of  the  legislature  should  be  based  upon  the 
number  of  Swiss  citizens,  instead  of  the  number  of 
residents,  in  the  district.  In  Aargau  it  has  been 
successful,  from  1893  to  1912,  in  three  cases  out  of 
six:  a  game  law;  election  of  the  executive  council 
by  the  people;  and  a  law  on  the  local  referendum. 
In  Thurgau  out  of  three  trials  it  was  successful  once: 
creating  industrial  tribunals.  In  Solothurn  both 
initiatives  were  rejected,  but  an  alternative  to  one 
of  them,  proposed  by  the  legislature,  was  adopted. 
In  Schaffhausen  the  only  measure  brought  forward 
by  the  initiative  was  rejected.  This  was  true  also 
of  the  single  cases  in  Rural  Basle  and  the  Valais,  of 
the  two  in  the  Grisons,  and  of  the  five  in  Lucerne. 

^  Two  laws  based  upon  initiative  were  enacted  by  the  legislature  and 
ratified  at  the  referendum. 


» 


§  88]    Results  of  Initiative  in  Switzerland     201 

In  Schwyz  the  only  initiative  was  a  proposal  for  a 
total  revision  of  the  constitution  which  was  accepted 
by  a  light  vote;  but  the  constitution  so  framed  was 
rejected  by  more  than  two  to  one  at  the  largest 
popular  vote  polled  in  the  canton  on  any  measure. 
In  St,  Gall  three  measures  were  so  proposed,  of  which 
one  was  adopted.  It  reduced  the  rate  of  interest  on 
mortgages  to  four  per  cent.,  but  three  years  later  a 
law  restoring  the  rate  to  four  and  a  half  per  cent,  was 
ratified  at  the  referendum.  Curiously  enough,  in  a 
couple  of  cantons  that  make  little  use  of  the  referen- 
dum the  initiative  has  been  comparatively  frequent. 
Geneva,  which  has  used  the  referendum  only  on 
ten  measures  in  more  than  thirty  years,  voted  on 
initiatives  six  times,  and  in  two  cases  with  success. 
One  forbade  a  man  to  hold  certain  public  offices  at 
the  same  time;  and  the  other  provided  for  the 
election  of  judges  by  the  people.  In  Basle  City, 
where  the  referendum  has  not  been  used  at  all,  the 
initiative  has  been  set  in  operation  twelve  times  and 
has  been  successful  in  two  instances;  one  of  which 
provided  that  the  legislature  should  be  chosen  by 
proportional  representation,  and  the  other  that  non- 
residents should  be  charged  tuition  fees  in  the 
schools.  In  none  of  the  other  cantons  has  any 
attempt  been  made  to  use  the  initiative. 

88.  Tendencies  in  Switzerland 

An  examination  of  the  list  shows  that,  except  for 
the  federal  act  on  the  slaughtering  of  cattle,  there  is 
nothing  very  peculiar  about  any  of  the  laws  enacted 
by  this  process.     People  may  well  differ  about  their 


202  Methods  of  Expressing  Public  Opinion  [§  88 

wisdom,  as  about  that  of  any  legislation,  but  they 
were  certainly  not  eccentric.  The  election  of  the 
executive  council  in  Aargau,  and  of  the  judges  in 
Geneva,  by  the  people  does  not  strike  Americans  as 
extraordinary^;  and,  on  the  other  hand,  a  study  of  the 
tables  in  Appendix  A  will  prove  that  the  really  radical, 
unusual,  or  doctrinaire  proposals  were  rejected  by 
overwhelming  majorities.  A  declaration,  for  exam- 
ple, of  the  duty  of  the  state  to  furnish  laborers  with 
work  was  defeated  in  the  Confederation  by  nearly 
four  to  one;  a  proposal  in  Geneva  for  the  separation 
of  church  and  state  and  for  old  age  pensions  was 
rejected  by  more  than  two  to  one  (although  when 
later  separated  the  first  part  of  this  measure  was 
ratified  on  a  referendum),  and  an  initiative  in  the 
same  canton  for  compulsory  mutual  fire  insur- 
ance was  defeated  more  than  four  to  one.  Even 
proportional  representation,  although  on  the  whole 
becoming  more  and  more  popular,  has  been  rejected 
a  number  of  times,  and  was  accepted  in  Basle 
City  only  by  a  vote  of  5,290  to  5,280.  In  short, 
the  Swiss  have  shown  themselves  in  the  use  of 
this  instrument,  as  in  that  of  the  referendum,  an 
eminently  conservative  people. 

The  most  notable  fact  about  Swiss  experience 
with  the  initiative  is  the  small  amount  of  legislation 
it  has  produced.  Even  the  attempts  to  use  it 
have  not  been  very  frequent.  The  total  output  of 
federal  legislation  from  that  source  in  a  score  of 
years  has  been  two  measures,  or  one  in  ten  years. 
In  the  cantons  the  result  has  been  smaller  still. 
In   the   eighteen,   or  in   some   cases   twenty,   years 


§  89]       Results  of  Initiative  in  America        203 

covered  by  the  tables  only  fifteen  measures  have 
been  enacted  in  this  way  by  all  the  eighteen  cantons 
that  possess  the  procedure,  or  an  average  of  less 
than  one  measure  per  canton  in  twenty  years; 
while  in  Bern,  the  most  prolific  of  them  all,  the 
average  is  only  one  measure  in  five  years.  The 
Swiss  people  certainly  do  not  appear  to  crave  any 
considerable  amount  of  legislation  which  their  rep- 
resentatives are  unwilling  to  enact.  This  is  the 
more  striking  because  in  strong  contrast  with  the 
experience  of  the  American  states,  where  the  initia- 
tive has  been  used  more  freely  than  the  referendum. 

89.   Results  of  the  Initiative  in  America 

Although  the  initiative  was  adopted  in  South 
Dakota  in  1898,  it  was  not  used  in  any  state  until 
1904,  when  it  was  put  into  operation  by  Oregon, 
which  has,  indeed,  applied  it  more  frequently  and 
with  greater  positive  results  than  all  the  other 
states  that  possess  it  put  together.^  Apart  from 
constitutional  amendments  passed  by  the  legislature 
and  submitted  as  of  course  to  the  people,  Oregon 
has  had,  through  1912,  popular  votes  by  referendum 
on  eleven  laws  or  appropriations,  six  of  them  being 
rejected.  But  by  initiative  twenty-eight  constitu- 
tional amendments  have  been  proposed,  of  which 
sixteen  were  adopted  by  the  people ;  and  forty-eight 
other  laws,  of  which  seventeen  have  been  accepted 

1  All  the  states,  except  New  Mexico,  that  have  the  general  refer- 
endum have  also  the  initiative,  at  least  for  ordinary  laws.  Nevada, 
however,  adopted  the  former  in  1904,  but  did  not  adopt  the  initiative 
until  1912.  In  Michigan  the  legislature  has  power  to  refer  laws  to  the 
people,  and  there  is  an  initiative  for  constitutional  amendments. 


204  Methods  of  Expressing  Public  Opinion  [§  89 

in  this  way.  The  number  of  measures  so  proposed 
has  increased  steadily,  but  at  the  last  four  biennial 
elections  the  number  adopted  has  remained  nearly 
constant.^  Truly  the  output  is  not  meagre.  In 
Oregon  alone  it  is  now  four  times  as  rapid  as  in  the 
Confederation  and  all  the  cantons  of  Switzerland 
added  together.  In  Colorado  the  institution,  for 
the  single  year  in  wliich  it  has  been  in  operation, 
has  been  equally  prolific;  for  in  1912  twenty  meas- 
ures were  proposed  by  that  means  and  eight  of 
them  adopted.  With  such  a  number  of  laws 
enacted  by  petition  and  popular  vote,  the  advocates 
of  direct  legislation  are  certainly  right  in  believing 
that,  if  the  votes  express  the  real  opinions  of  the 
people,  the  representatives  in  these  two  states  are 
out  of  touch  with  their  constituents;  and  if  this 
is  a  permanent  condition,  representative  democracy 
there  has  not  been  highly  successful. 

The  other  states  have  found  the  initiative  less 
productive.  In  Maine,  where  it  has  existed  several 
years,  only  one  measure  has  been  proposed  and 
that  was  adopted.  In  Missouri  six  measures,  all 
constitutional  amendments,  have  been  proposed, 
and  all  of  them  were  heavily  defeated.  In  Montana 
it  was  not  used  until  1912,  when  four  acts  were 
proposed  and  accepted  by  large  majorities.  In 
Oklahoma  ten  measures  have  been  proposed,  four 

'  Year  Proposed  Adopted 

1904    2 2 

1906 10 7 

1908 11 8 

1910 25 8 

1912 28 8 

One  other  measure  proposed  in  1912  was  not  on  the  ballot. 


§  90]  Laws  Enacted  by  Initiative  205 

of  them  being  accepted;  but  the  special  election 
at  which  one  of  these  was  ratified  was  afterwards 
declared  unconstitutional.  It  may  be  observed, 
however,  that  another  of  the  measures  received  a 
majority  of  the  votes  cast  thereon,  but  not  a  majority 
of  all  the  votes  cast  at  the  election,  which  is  required 
by  the  constitution.  In  South  Dakota  only  three 
measures  have  been  so  proposed,  of  which  only  one 
was  accepted;  and  that  one,  although  proposed  by 
initiative,  was  in  fact  enacted  by  the  legislature. 

Of  the  states  in  which  the  initiative  did  not  come 
into  operation  until  the  election  of  1912,  Colorado 
has  already  been  mentioned.  For  the  rest,  one 
measure,  extending  the  suffrage  to  women,  was 
proposed  and  adopted  in  Arizona.  In  Arkansas, 
on  the  other  hand,  six  measures  were  proposed  and 
three  adopted.  In  California  three  were  proposed 
and  rejected;  while  New  Mexico  made  no  use  of  the 
institution. 

90.  Nature  of  the  Laws  Enacted  by  Initiative 

The  people  of  those  American  states  which  have 
established  direct  legislation  have  certainly  been 
more  attracted  by  the  initiative  than  by  the  refer- 
endum, for  they  have  used  it  more  frequently.  An 
examination  of  the  various  measures  enacted  thereby 
w^ill  throw  light  upon  the  working  of  the  institution. 
Many  of  them  have  been  of  a  purely  political 
character;  that  is,  they  have  dealt  with  the  structure 
and  powers  of  the  state  government  or  the  forms  of 
procedure.  Twenty-two  of  the  fifty-five  so  carried, 
or  about  two  fifths,  fell  within  that  category.     They 


206  Methods  of  Expressing  Public  Opinion  [§  90 

related  to  sucli  matters  as  the  method  of  amend- 
ing the  constitution,  direct  nominations,  length  of 
legislative  sessions,  recall  of  public  officers  and  of 
judicial  decisions,  ballots  at  elections,  expenditures 
by  candidates,  proportional  representation,  woman 
suffrage,  and  disfranchisement  of  negroes.  Nearly 
a  score  more  concerned  other  public  affairs,  such 
as  civil  service  reform,  judicial  procedure,  aid  for 
schools,  the  limit  of  debt  for  roads,  state  printing, 
state  institutions,  the  employment  of  convicts,  free 
passes  on  railroads  for  members  of  the  legislature, 
the  kinds  of  property  to  be  taxed  and  the  rates 
thereon.  Some  of  the  measures  in  Oregon  dealt 
with  specific  matters,  like  the  adoption  of  a  particu- 
lar normal  school  by  the  state,  and  the  imposing 
of  a  tax  on  the  gross  earnings  of  telegraph,  telephone, 
and  sleeping  car  companies.  Other  successful  uses 
of  the  initiative  related  to  local  government.  Of 
this  nature  were  laws  establishing  local  option  in 
the  sale  of  liquor,  giving  to  cities  power  to  create 
their  own  organization,  providing  for  the  referendum 
and  initiative  therein,  regulating  their  debts,  and 
in  one  case  in  Oregon  creating  a  new  county  by 
special  act. 

Only  nine  of  the  laws  adopted  in  this  way  con- 
cerned directly  the  conduct  of  private  persons. 
Three  of  them  regulated  the  taking  of  fish;  three 
related  to  the  hours  of  labor  in  public  work,  in  mines, 
and  of  women ;  one  to  the  liability  of  employers  for 
accidents ;  one  fixed  freight  rates ;  and  another  was  a 
mothers  compensation  act.  Of  these  nine,  six  were 
adopted  in  Oregon,  and  the  other  three  in  Colorado. 


§  91]         Nature  of  Proposals  Rejected         207 

91.   Nature  of  Proposals  Rejected 

The  measures  proposed  and  rejected  are,  perhaps, 
not  less  illuminating.  Passing  by  for  a  moment  the 
fertile  soil  of  Oregon,  we  find,  as  in  the  case  of  the 
laws  adopted,  a  great  preponderance  of  measures 
of  a  political  character;  the  only  proposals  relating 
primarily  to  the  conduct  of  private  persons  being 
a  number  of  attempts  to  secure  prohibition  in  the 
sale  of  liquor  and  one  to  license  horse-racing  and 
forbid  betting.  A  few  proposals  there  were  upon  the 
border  line;  such  as  the  creation  of  commissions 
to  regulate  public  service  corporations,  a  provision 
for  trial  by  jury  in  cases  of  contempt  of  court,  and 
perhaps  we  should  add  the  maintenance  of  an 
immigration  bureau.  All  the  rest  of  the  measures 
proposed  and  rejected  dealt  with  the  organs  of 
government  and  their  functions.  They  related  to 
elections,  local  government,  public  education,  high 
ways,  taxation  and  the  like,  many  of  the  meas- 
ures rejected  being  similar  to  those  adopted  in 
other  states. 

Turning  now  to  Oregon,  the  greatest  of  labora- 
tories for  experiments  in  direct  legislation,  we  find 
that  the  laws  proposed  by  the  initiative  cover  a 
range  of  miscellaneous  objects  as  wide  as  those 
which  come  before  a  state  legislature.  Nor,  con- 
trary to  the  usual  assumption,  did  they  proceed 
wholly  from  those  who  advocate  lawmaking  by 
popular  vote,  but  in  no  inconsiderable  share  from 
its  opponents.  In  other  words,  the  measures 
brought  before  the  people  in  this  way  have  not  been 


208  Methods  of  Expressing  Public  Opinion  [§  91 

by  any  means  always  radical,  or  all  in  one  direc- 
tion. Measures  have  been  brought  forward,  for 
example,  to  enlarge  and  to  restrict  the  operation  of 
the  referendum  and  the  initiative.  The  questions 
of  prohibition  and  taxation  have  been  the  subject 
of  proposals  and  counter  proposals  seeking  directly 
contrary  ends;  and  so  has  the  question  of  author- 
izing or  limiting  indebtedness  for  building  roads. 
Some  of  the  proposals,  moreover,  that  have  been 
adopted  by  the  people,  were  not  the  radical  ones. 

The  House  of  Commons  has  been  compared  to 
an  elephant's  trunk  which  can  lift  a  tree  or  pick 
up  a  pin,  and  the  initiative  in  Oregon  seems  to 
emulate  that  versatility.  One  proposal  involved 
a  reconstruction  of  the  whole  state  government, 
abolishing  the  Senate,  introducing  proportional  repre- 
sentation into  the  remaining  House,  making  the 
Governor  and  all  his  defeated  rivals  ex  officio  mem- 
bers thereof,  forbidding  appropriations  except  on 
the  recommendation  of  the  Governor,  etc.;  while 
no  less  than  ten  special  acts  were  proposed  to  create 
particular  new  counties  or  change  the  boundaries  of 
existing  ones.  Save  for  one  measure  in  1908  creat- 
ing a  county  these  last  proposals  were  rejected  by 
overwhelming  majorities.  Attempts  have  also  been 
made  to  transfer  to  the  state  a  toll  road  and  particu- 
lar normal  schools,  in  the  case  of  one  of  the  latter 
with  success.  Other  proposals  which  were  rejected 
dealt  with  woman  suffrage,  the  law  of  elections, 
the  apportionment  of  state  taxes,  the  establish- 
ment of  an  official  state  periodical,  a  state  highway 
department,    a    state    hotel    inspector,    with    state 


§92]      The  Initiative  and  Public  Opinion     209 

printing,  a  state  license  for  selling  stocks  and  bonds, 
with  the  government  and  support  of  the  state 
University  and  the  Agricultural  School,  with  the 
areas  of  local  government,  with  the  abolition  of 
capital  punishment,  with  the  prohibition  of  boy- 
cotting and  picketing  and  of  meetings  on  public 
land  without  the  consent  of  the  mayor. 

92.   The  Initiative  and  Public  Opinion 

An  examination  of  the  measures  proposed  by  the 
initiative  in  Oregon  makes  it  appear  improbable 
that  the  public  could  have  had  a  real  opinion  on  all 
of  them.  No  doubt  there  was  a  very  genuine  opinion 
on  some  of  them  which  were  well  understood,  such 
as  woman  suffrage,  prohibition,  and  others.  But 
this  can  hardly  have  been  true  of  all  the  rest,  on 
account  of  the  number  of  questions  submitted  to 
popular  vote  at  one  time.  In  addition  to  the  choice 
of  many  public  officers,  the  people  were  asked  to 
vote  on  thirty-two  different  measures  in  1910  and 
thirty-seven  in  1912.  Now  if  any  candid  man  who 
is  not  in  active  politics,  but  takes  a  serious  interest 
in  public  affairs,  will  consider  on  how  many  of  the 
candidates  for  office,  constitutional  amendments 
and  other  questions  on  which  he  votes  (quite  apart 
from  the  general  referendum  and  initiative)  he  has 
a  real  personal  opinion  formed  by  personal  judg- 
ment, he  will  be  shocked  if  he  is  not  already  aware 
of  his  own  ignorance.  In  a  lamentable  proportion 
of  cases  he  acts  upon  an  impression,  a  prejudice,  or 
upon  the  advice  of  some  person  or  party  that  he 
trusts;    and  if  he  is  as  intelligent  and  conscientious 

14 


210  Methods  of  Expressing  Public  Opinion  [§92 

as  the  average  citizen,  he  may  assume  that  the  other 
voters  are  mostly  in  the  same  condition  as  himself. 
But  the  opinion  of  the  whole  people  is  only  the 
collected  opinions  of  all  the  persons  therein.  Even 
assuming  that  every  citizen  reads  a  pamphlet  of 
over  two  hundred  pages,  with  brief  arguments  on 
both  sides  of  a  part  of  the  questions,  it  is  unlikely 
that  he  will  form  a  personal  judgment  on  all  of  them. 
The  fact  that  he  votes  on  them  all  may  prove  only 
that  he  follows  what  he  believes  to  be  a  good  lead; 
and  the  fact  that  the  people  discriminate,  not  adopt- 
ing or  rejecting  everything  coming  from  a  certain 
source,  proves  only  that  a  fraction  of  the  people 
act  independently,  rather  than  that  they  all  have 
opinions  of  their  own.  Yet  this  is  the  assumption 
on  which  the  initiative  is  based,  and  it  becomes  less 
accurate  as  the  number  of  questions  to  be  decided 
by  popular  vote  exceeds  the  capacity  of  the  ordinary 
busy  man  to  decide  for  himself. 

We  have  seen  that  such  questions  in  Oregon  are 
far  more  numerous  than  in  any  of  the  Swiss  cantons, 
even  those  with  both  initiative  and  compulsory 
referendum  on  all  laws.  Among  the  laws,  moreover, 
proposed  by  initiative  in  Oregon  there  were  some 
requiring  for  the  formation  of  an  intelligent  opinion 
a  familiarity  with  facts  not  of  common  knowledge. 
This  is  true,  for  example,  of  the  question  which,  if 
any,  of  three  competing  normal  schools  ought  to  be 
supported  by  the  state.  Others  required  informa- 
tion about  local  conditions,  as  in  the  case  of  the 
eight  proposals  of  1910  to  create  new  counties  or 
change  the  boundaries  of  existing  ones.     The  people 


§93]    Complex  Subjects  and  the  Initiative  211 

seem  to  have  recognized  this  in  their  rejection  of  all 
the  eight;  but  if  so,  the  vote  was  an  expression  of 
opinion,  not  on  the  merits  of  the  measures  them- 
selves, but  on  the  popular  incompetence  to  decide 
them,  and  on  the  principle  that  such  measures 
ought  not  to  be  proposed  in  this  way. 

93.   Complex  Subjects  Presented  by  Initiative 

Then  some  of  the  measures  presented  by  the 
initiative  in  Oregon  —  that  on  judicial  procedure  in 
1910,  for  example,  and  those  changing  radically 
the  structure  of  the  state  government  in  1910  and 
1912  —  were  very  comprehensive  and  complex,  of 
a  nature  to  require  profound  and  prolonged  study. 
Even  the  advocates  of  direct  legislation  assert  that 
the  issue  in  the  case  of  the  constitutional  pro- 
posal of  1910  was  confused.  Their  organ.  Equity, 
quotes  Mr.  Alfred  D.  Cridge  to  the  effect  that,  out- 
side of  the  cities,  the  provision  seeking  to  estab- 
lish proportional  representation  was  not  understood, 
and  that  if  it  had  not  been  combined  with  dis- 
tinctly unpopular  matters,  and  if  the  People's  Power 
League  has  been  able  to  place  a  few  speakers  in 
the  field,  it  would  have  been  carried  by  a  large 
majority.^  The  judicial  procedure  amendment  of 
1910,  although  not  very  long,  contained  a  series  of 
provisions  about  trial  by  jury  and  about  the  power 
of  the  Supreme  Court  of  the  state  to  deal  with 
appeals  in  cases  where  verdicts  have  been  rendered. 
This  is  a  highly  technical  subject  in  which  it  is 
easy  to   lose   one's    way.     One    of    the   objects   of 

1  Equity,  January,  1911,  p.  42. 


212  Methods  of  Expressing  Public  Opinion  [§  93 

the  measure  was  undoubtedly  to  prevent  the  vexa- 
tion of  a  new  trial  where  substantial  justice  can 
be  done  without  it.^     The  provision  reads: 

"Sec.  3.  In  actions  at  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved,  and  no  fact  tried 
by  a  jury  shall  be  otherwise  reexamined  in  any 
court  of  this  State,  unless  the  court  can  affirmatively 
say  there  is  no  evidence  to  support  the  verdict. 
Until  otherwise  provided  by  law,  upon  appeal  of 
any  case  to  the  Supreme  Court,  either  party  may 
have  attached  to  the  bill  of  exceptions  the  whole 
testimony,  the  instructions  of  the  court  to  the  jury, 
and  any  other  matter  material  to  the  decision  of 
the  appeal.  If  the  Supreme  Court  shall  be  of 
opinion,  after  consideration  of  all  the  matters  thus 
submitted,  that  the  judgment  of  the  court  appealed 
from  was  such  as  should  have  been  rendered  in  the 
case,  such  judgment  shall  be  affirmed,  notwith- 
standing any  error  committed  during  the  trial;  or 
if,  in  any  respect,  the  judgment  appealed  from 
should  be  changed,  and  the  Supreme  Court  shall 
be  of  opinion  that  it  can  determine  what  judgment 
should  have  been  entered  in  the  court  below,  it 
shall  direct  such  judgment  to  be  entered  in  the 
same  manner  and  with  dike  effect  as  decrees  are 
now  entered  in  equity  cases  on  appeal  to  the  Supreme 
Court.  Provided,  that  nothing  in  this  section  shall 
be  construed  to  authorize  the  Supreme  Court  to 
find  the  defendant  in  a  criminal  case  guilty  of  an 
offence  for  which  a  greater  penalty  is  provided  than 

I  Official  Pamphlet,  1910,  p.  177. 


§  93]   Complex  Subjects  and  the  Initiative    213 

that  of  which  the  accused  was  convicted  in  the  lower 
court." 

One  of  the  leaders  of  the  Oregon  Bar  is  of  opinion 
that  this  empowers  the  Supreme  Court  of  the  state 
to  enter  judgment  contrary  to  the  verdict  of  the 
jury.^  In  view  of  the  first  sentence  of  the  section, 
forbidding  reexamination  of  facts  tried  by  a  jury, 
and  the  last  sentence,  which  assumes  that  a  prisoner 
may  be  found  guilty  of  an  offence  for  which  he  was 
not  convicted  by  the  verdict  of  the  jury  if  the 
penalty  is  not  greater,  the  construction  of  the  powers 
conferred  on  the  Supreme  Court  in  the  body  of  the 
section  appears,  to  a  lawyer  bred  in  another  part 
of  the  country,  open  to  doubt.  Is  it  probable  that 
the  bulk  of  the  voters  of  Oregon  had  an  opinion  on 
this  intricate  point  of  law;  and  if  not,  can  they  be 
said  to  have  had  an  opinion  in  favor  of  investing 
the  Supreme  Court  with  powers  that  they  did  not 
understand?  No  doubt  they  had  an  opinion  upon 
another  section  which  provides  for  verdicts  in  civil 
cases  by  three  quarters  of  the  jury;  but  the  question 
what  the  court  shall  do  when  the  verdict  is  incon- 
sistent with  the  testimony  does  not  seem  to  have 
occurred  even  to  the  framers  of  the  amendment, 
who  were  apparently  thinking  only  of  avoiding 
new  trials  on  technical  grounds.^  Yet  whatever 
the  provision  may  mean,  it  obviously  goes  farther 
than  this. 

The  object  of  the  initiative  being  to  form  and 

^  Address  of  Frederick  V.  Holman,  President   of   the  Oregon   Bar 
Association,  at  its  meeting,  November  1.5,  1910,  p.  39  et  seq. 
^  See  their  argument  in  the  Official  Pamphlet,  1910,  p.  177. 


214  Methods  of  Expressing  Public  Opinion  [§  94 

elicit  a  real  public  opinion,  and  to  separate  the  issues 
presented  to  the  people  from  general  party  consider- 
ations, the  questions  presented  ought  to  be  simple 
and  single;  whereas  under  a  general  initiative  it 
is  possible  to  present  a  complicated  measure,  diffi- 
cult to  understand,  and  sugar-coat  it  by  some 
provision  obvious  and  attractive  at  first  sight. 
Thus  in  Oregon  the  amendment  of  1910,  repeal- 
ing the  constitutional  provision  about  equality  of 
taxation  and  giving  to  local  bodies  authoritj^  to 
regulate  taxes,  contained  a  provision  abolishing 
the  poll  tax.  The  amendment  was  adopted  by 
36.7  per  cent,  of  the  citizens  who  took  part  in  the 
election,  35  per  cent,  voting  against  it,  and  28.3 
per  cent,  not  voting  on  it  at  all.  A  change  of  1023 
votes  would  have  changed  the  result,  and  there 
may  well  have  been  more  than  that  number  who 
thought  of  the  poll  tax  alone.  I  do  not  for  a  moment 
wish  to  insinuate  that  the  provision  was  inserted 
to  make  the  measure  more  palatable,  or  distract 
attention  from  the  main  issue,  but  the  occurrence 
points  to  a  possible  danger  in  the  unrestricted  use  of 
the  initiative;  and  it  is  noteworthy  that  a  repeal 
of  the  whole  of  the  amendment,  save  the  abolition 
of  the  poll  tax,  was  ratified  at  the  next  election  by 
a  popular  majority  of  16,731. 

94.    Close  Votes  and  Public  Opinion 

The  doubts  about  the  existence  of  a  real  public 
opinion  arising  from  the  closeness  and  small  size 
of  the  vote  apply,  of  course,  to  the  initiative  as 
well  as  the  referendum.     With  what  confidence,  for 


§  94]        Close  Votes  and  Public  Opinion        215 

example,  can  we  say  that  the  people  of  Oregon  did 
not  want  an  income  tax  when  at  the  election  of 
1912,  38.75  per  cent,  of  those  who  went  to  the  polls 
voted  for  it,  and  38.92  voted  against  it.  In  other 
words,  the  decision  was  made  by  0.17  per  cent,  of 
those  who  took  part  in  the  election,  while  22.33 
per  cent,  of  those  present  did  not  vote  on  it,  and 
probably  as  many  more  were  absent  altogether. 

Several  cases  in  Colorado  in  the  same  year  are 
even  more  striking.  The  proposal  to  publish  an 
official  pamphlet  containing  arguments  on  the 
measures  to  be  submitted  to  the  people  was  defeated 
by  a  vote  of  14.30  per  cent,  in  its  favor  against 
14.65  per  cent,  against  it,  while  71.05  per  cent,  of 
those  who  took  part  in  the  election  abstained  from 
voting  either  way  on  the  question.  On  the  other 
hand  the  law  to  place  all  appointed  public  officers 
under  civil  service  rules  was  adopted  by  14.61  per 
cent,  against  13.42  per  cent.,  72  per  cent,  of  those 
present  not  voting;  and  the  laws  to  give  home  rule 
to  cities,  to  forbid  lists  of  party  candidates  on 
ballots,  and  to  make  eight  hours  a  day's  labor  in 
mines  were  carried  by  only  slightly  larger  margins. 
It  must  be  remembered  that  the  percentages  of 
votes  on  these  measures  are  of  the  votes  actually 
cast  for  presidential  electors  at  the  same  time,  so 
that  the  proportions  of  registered  voters  were 
smaller  still.  In  such  cases  it  seems  an  exaggera- 
tion to  speak  of  the  result  as  a  real  expression  of 
public  opinion. 


216  Methods  of  Expressing  Public  Opinion  [§95 

95.   Stability  as  Evidence  of  Opinion 

Persistence  in  the  result  of  popular  votes  on  a 
subject  has  an  important  bearing  on  the  question 
of  public  opinion  in  two  ways.  If  the  people  vote 
differently  at  short  intervals  it  increases  the  prob- 
ability that  in  one  or  other  of  the  cases  the  majority 
was  due  to  chance,  or  rather  to  something  other 
than  a  deliberate  opinion  on  the  measure  presented; 
and  if  the  people  really  change  their  opinions  in  a 
short  time,  those  opinions  are  of  the  less  value  as 
a  basis  for  legislation.  The  public  sentiment  that 
should  rule  is  one  which  is  serious,  deep-rooted,  and 
stable.  Now  Oregon  is  the  only  American  state 
that  has  made  use  of  direct  legislation  long  enough 
to  measure  the  stability  of  the  vote,  and  the  results 
are  not  wholly  reassuring.  A  constitutional  amend- 
ment giving  women  the  right  to  vote  was  brought 
forward  and  rejected  with  ever  increasing  majorities 
in  1906,  1908,  and  1910,  and  was  adopted  by  a  small 
margin  in  1912.  The  sale  of  liquor  has  been  the 
subject  of  constant  agitation.  In  1908  a  measure 
providing  for  local  option  was  rejected  by  a  sub- 
stantial majority.  At  the  next  election  in  1910  a 
similar  proposal  was  made  which  was  said  by  its 
opponents  to  be  "the  most  impudent  affront  to 
the  intelligence  of  Oregon  voters,"  an  attempt  "to 
foist  into  the  Constitution  in  a  new  dress,  the  Reddy 
Bill,  which  was  defeated  at  the  last  state  election"^ ; 
but  it  was  carried.  Again,  it  is  charged  from 
an  entirely  dift'erent  quarter  that  the  constitutional 

1  Official  PampMet,  1910,  p.  78. 


§96]  Defects  of  the  Initiative  217 

amendment  on  taxation  proposed  by  initiative  in 
1910,  and  adopted,  had  substantially  the  same 
object  as  an  initiative  of  1908  which  had  been 
defeated  by  a  majority  of  nearly  two  to  one.^  The 
amendment  of  1910  gave  to  the  counties  power  to 
levy  taxes  in  any  way  they  pleased,  and  at  the 
same  time  abolished  the  poll  tax;  but  the  next 
legislature  passed  an  amendment  to  repeal  the  whole 
of  the  amendment  of  1910  except  the  abolition  of 
the  poll  tax,  and  this  in  turn  the  people  ratified  by 
a  vote  half  as  large  again  as  that  which  had  been 
cast  against  the  measure  adopted  in  1910.  A 
stranger  cannot  form  an  opinion  of  any  value  on 
the  merits  of  these  questions,  but  when  leading 
citizens  of  the  state  on  opposite  sides  allege  that 
the  people  changed  their  mind  at  short  intervals 
without  adequate  reason,  he  must  admit  that  there 
is  some  ground  for  their  statements. 

96.   Defects  of  the  Initiative 

Connected  with  this  matter  of  stability  of  laws 
under  the  initiative  is  that  of  constant  repetition 
of  the  same  proposal.  If  a  popular  vote  expresses 
a  real  opinion,  an  enduring  opinion,  of  the  electorate, 
it  ought  to  be  accepted  as  final  until  such  time  as 
the  people  may  reasonably  be  supposed  to  have 
had  good  ground  for  changing  their  convictions. 
It  is  hardly  wise  to  overburden  the  people  by 
enlarging  the  list  of  measures  they  must  decide 
with    questions    needlessly    repeated.     When    they 

1  Chicago  Civic  Federation  Bulletin,  No.  3,  Remarks  of  Frederick  V. 
Holman,  pp.  16-17. 


218  Methods  of  Expressing  Public  Opinion  [§96 

are  weary  of  the  subject,  it  may  by  accident  be 
carried  by  default  because  they  think  the  result 
certain.  This  is  quite  different  from  the  repetition 
of  a  bill  in  the  legislature,  which  is  bound  to  discuss 
it,  at  least  in  committee,  before  acting  upon  it. 
It  might  be  well  to  provide  that  the  same  cpestion 
shall  not  be  proposed  by  initiative  afresh  until 
after  a  certain  lapse  of  time. 

There  is  also  some  objection  to  constitutional 
amendment  by  the  ordinary  initiative.  This  tends 
to  incorporate  in  the  constitution  matters  that  have 
no  proper  place  there.  The  object  in  resorting 
to  it  is  to  make  the  law  a  little  more  difficult 
to  change;  but  if  the  people  can  be  trusted,  there 
is  no  sufficient  reason  for  that.  If  there  be  any 
difference  between  constitutional  and  other  laws, 
the  former  ought  surely  to  require  a  greater  degree 
of  consideration  and,  therefore,  a  more  deliberate 
procedure.  Really  fundamental  institutions  do  not 
need  to  be  changed  in  a  huriy,  and  it  is  noteworthy 
that  several  of  the  states  which  have  adopted  the 
initiative  have  not  applied  it  to  constitutional 
questions. 

Another  practical  difficulty  arises  from  the  lack 
of  a  thorough  examination  of  the  measure  proposed. 
There  may,  or  there  may  not,  be  an  active  discussion 
upon  it  in  the  press  or  among  the  people;  but  there 
is  no  one  whose  business  it  is  to  study  it,  to  criticise 
it,  or  to  hear  evidence  upon  it;  and  in  a  democracy 
that  which  is  anybody's  business  is  apt  to  be 
neglected.  We  have  already  seen  how  small  a 
proportion    of    the    measures   brought    forward   by 


§  97]  Impossibility  of  Amendment  219 

initiative  in  Oregon  have  been  argued  on  both  sides 
in  the  Official  Pamphlet,  and  how  many  have  not 
been  argued  there  at  all.  In  order  to  remedy  this 
defect  in  the  procedure  some  states  have  provided 
that  initiated  measures  must  first  be  presented  to 
the  legislature  for  debate  and  public  hearing,  and  if 
that  body  sees  fit  it  may  submit  to  the  people, 
alongside  of  the  original  proposal,  an  amended  bill 
of  its  own.  Such  a  provision  for  discussion,  espe- 
cially if  accompanied  by  public  hearings,  may  be  a 
great  benefit. 

97.   Impossibility  of  Amendment 

The  initiation  of  laws  by  private  persons,  instead 
of  by  public  authority,  has  some  practical  incon- 
veniences. The  proposal  is  framed  by  men  who  are 
earnestly  in  favor  of  it,  and  there  is  no  chance  to 
amend  it.  In  some  states  a  referendum  may  be 
demanded  against  part  of  a  statute.  That  has,  no 
doubt,  an  objectionable  side,  because  it  mutilates  a 
plan  that  may  be  acceptable  only  as  a  whole.  But 
in  the  case  of  the  initiative  nothing  of  the  kind  is 
permitted.  The  people  must  accept  or  reject  as  a 
whole  what  is  offered  them,  no  matter  how  much 
they  might  prefer  a  different  measure,  for  the  public 
has  no  control  over  the  questions  it  will  answer. 
When  a  measure  is  proposed  by  initiative  there  is 
no  chance  for  compromise  with  those  who  perceive 
objections  to  some  of  its  provisions.  Compromise, 
as  we  have  already  remarked,  connotes  evil  things 
in  the  popular  imagination,  but  it  is  the  life-blood 
of  healthy  and   enduring  legislation,   for  it  is   the 


2''20  Methods  of  Expressing  Public  Opinion  [§  98 

means   by   which   the   centre   of   gravity   of   pubHc 
opinion  is  found. 

Under  the  initiative  there  is  a  pecuhar  danger 
of  bad  drafting  of  laws.  The  drafting  of  bills  is 
none  too  good  in  our  legislatures,  but  there  the 
bill  must  at  least  pass  two  houses,  and  be  read  more 
or  less  critically  by  a  number  of  people  while  oppor- 
tunity is  still  given  to  amend  it.  Whereas  a  bill 
framed  by  popular  initiative  practically  cannot  be 
altered  after  signatures  have  begun  to  be  collected, 
in  other  words  after  it  passes  out  of  the  hands  of 
its  framers  and  first  friends;  and  whatever  grave 
defects  of  drafting  it  may  contain  cannot  be  touched 
after  the  petition  for  a  popular  vote  has  been  filed, 
that  is,  after  its  opponents  have  a  chance  to  criticise 
it.  The  judicial  procedure  amendment  of  Oregon 
is  an  example  of  bad  drafting  that  would  certainly 
be  less  likely  to  occur  if  the  bill  had  been  submitted 
to  the  examination  of  a  committee  on  the  judiciary 
in  the  legislature.  A  still  worse  case  was  that  of 
the  law  forbidding  free  passes  on  railroads  for 
members  of  the  legislature,  which  contained  no 
enacting  words  and  was  therefore  without  effect.^ 
There  would  certainly  be  nothing  inconsistent  with 
the  principle  of  the  initiative  in  requiring  all  pro- 
posals to  be  submitted  to  a  legislative  draftsman 
for  criticism  and  suggestion. 

98.   Does  the  Public  Initiate  ? 

We  speak  of  the  initiative  as  a  method  whereby 
the    people    can    propose    laws,  and  we  are  inclined 

1  Cf.  Political  Science  Quarterly,  December,  1908,  p.  600. 


§98]  Does  the  Public  Initiate?  221 

to  attach  some  pecuhar  importance  to  a  bill  be- 
cause it  originates  directly  with  the  public.  Let  us 
consider  a  moment  precisely  what  we  mean  by  that. 
In  comparing  the  English  criminal  procedure,  in 
which  the  offender  is  commonly  prosecuted  by 
private  persons,  with  the  system  prevailing  in  other 
countries,  where  the  matter  is  in  the  hands  of 
a  public  prosecutor,  Professor  Maitland  insisted 
that  the  English  plan  is  really  public  prosecution 
because  any  member  of  the  public  can  instigate 
it;  whereas  according  to  the  accepted  usage  the 
term  is  applied  to  prosecution  only  at  the  instiga- 
tion of  a  public  officer.  If  we  look  at  legislation  in 
the  same  way,  we  may  ask  ourselves  whether  the 
initiation  of  laws  is  properly  called  public  when 
conducted  by  private  persons,  or  when  intrusted 
to  representatives  chosen  by  the  public  for  the 
purpose.  A  discussion  of  the  meaning  of  words  is 
futile  except  so  far  as  it  throws  light  upon  the 
principles  involved.  Now  the  initiative  enables  a 
number  of  private  and  irresponsible  persons  to 
propose  any  legislation  they  please  without  regard 
to  the  wishes  of  the  general  public.  Often  that  is 
unobjectionable,  because  the  people  can  simply 
reject  the  law;  but  the  art  of  government  consists 
in  reconciling  and  smoothing  over  differences,  as 
well  as  in  deciding  them.  There  are  many  questions, 
of  a  religious  or  racial  character,  for  example,  which 
the  good  sense  of  the  community  refuses  to  raise, 
but  which  fanatics  are  anxious  to  bring  forward. 
Is  it  better  that  the  representatives  of  the  public 
in  the  legislature    should   have  power  to   suppress 


222  Methods  of  Expressing  Public  Opinion  [§  98 

such  proposals,  or  that  a  fraction  of  the  citizens 
should  have  a  right  to  provoke  a  popular  vote  upon 
them  even  when  public  opinion  is  against  permitting 
this?  From  the  point  of  view  of  expediency  there 
is  much  to  be  said  on  both  sides.  On  the  one  hand 
the  inflaming  of  anti-Semitic  feeling  in  Switzerland 
by  the  proposal  to  forbid  the  manufacture  of  kosher 
meat  was  probably  a  misfortune;  but,  on  the  other 
hand,  a  legislature  which  has  power  to  dismiss  such 
questions  may  suppress  others  that  ought  to  be  dis- 
cussed. AMiether  expedient  or  not  it  is  hard  to  see 
how  the  right  of  a  small  minority  to  raise  issues 
uncomfortable  for  the  majority  is  giving  effect  to 
pubHc  opinion.  May  not  the  public  properly  de- 
mand evidence  that  the  proposal  issues  from  a  really 
considerable  popular  demand.^  For  this  reason 
there  is  a  tendency  in  some  of  the  states  adopting 
the  initiative  to  require  a  larger  percentage  of  voters 
to  bring  forward  a  law  than  appears  in  the  earlier 
practice. 

The  more  eager  advocates  of  direct  legislation 
resent  any  suggestions  for  restrictions  upon  the 
use  of  the  initiative.  But  in  this  they  seem  unwise. 
New  ideas  ought  to  struggle  against  opposition, 
to  prove  their  worth  against  a  fire  of  criticism, 
before  they  are  victorious ;  otherwise  they  may  be 
adopted  in  haste  and  lead  to  repentance  at  leisure. 
A  slow  progress  under  the  gradual  i)ressure  of  a 
growing  public  sentiment  does  more  for  the  advance 
of  civilization  than  a  more  rapid  movement  followed 
by  reaction.  Nor  is  the  danger  only  that  measures 
will    be    adopted    incautiously,    for    the    premature 


§98]  Does  the  Public  Initiate?  223 

forcing  of  a  popular  vote  upon  an  excellent  proposal 
may  result  in  a  defeat  which  will  retard  its  ultimate 
adoption.  The  most  valuable  institution  is  not 
that  which  bears  the  earliest,  but  that  which  bears 
the  best,  fruit. 


CHAPTER  XV 

REFLECTIONS  ON  DIRECT  LEGISLATION 

It  has  been  said  that  the  initiative  corrects  the 
legislature's  sins  of  omission,  the  referendum  its 
sins  of  commission.^  The  objects  of  the  two  are 
quite  distinct.  The  referendum  may  prevent  laws 
that  the  people  do  not  want,  but  it  produces  no 
legislation;  while  the  initiative  gives  an  opportunity 
to  enact  measures  the  people  may  desire,  but  it 
hinders  no  bad  laws.  Each  of  them  has  its  merits 
and  defects,  its  advantages,  its  dangers  and  its 
proper  limitations.  Hence  under  the  conditions  of 
any  community  it  may  be  that  one  of  them  will 
prove  beneficial  and  the  other  not,  or  that  they  may 
be  wisely  applied  to  different  subjects  and  with 
different  restrictions.  Yet  there  are  some  general 
considerations  that  apply  to  both,  especially  in 
relation  to  the  question  how  far,  and  under  what 
conditions,  a  popular  vote  upon  a  measure  is  an 
accurate  expression  of  a  real  public  opinion. 

99.   Trustworthiness  of  the  Result 

We  have  observed  that  the  vote  on  measures  is 
almost  invariably  smaller,  often  very  much  smaller, 
than  the  vote  for  the  chief  elective  officers;  and  if 
we  may  assume  that  the  size  of  the  vote  indicates 

'  Professor  L.  J.  Johnson,  The  Initiative  and  Referendum,  an  Effec- 
tive Ally  of  Representative  Government,  p.  5. 


§99]  Trustworthiness  of  the  Result         225 

the  number  of  persons  who  have  a  serious  opinion 
on  the  question,  it  bears  upon  the  probabihty  of  a 
true  pubHc  opinion  in  the  community  as  a  whole. 
We  have  noted  cases  where  the  majority  by  which 
the  question  was  decided  has  been  exceedingly 
small,  and  where  the  number  of  citizens  who  did 
not  vote  on  the  measure  at  all  was  as  large,  or  even 
much  larger,  than  the  votes  cast  for  or  against  it. 
The  necessity  for  a  decision  in  such  a  case  may 
require  that  the  majority,  however  minute,  have 
their  way,  and  those  who  do  not  vote  may  well  be 
held  not  to  object  to  the  law;  but  it  seems  like  an 
abuse  of  terms  to  speak  of  the  result  as  an  expression 
of  a  public  opinion.  The  well-known  fact  that  there 
is  almost  always  a  larger  vote  for  representatives 
than  for  measures  would  appear  to  show  that 
there  is  more  truly  a  public  opinion  on  the  choice 
of  men  than  on  laws;  yet  the  reason  commonly 
given  for  direct  legislation  is  that  the  representa- 
tives do  not  reflect  the  opinion  of  the  people. 
Cases  of  narrow  majorities  on  small  votes  may  not 
be  frequent,  and  there  can  be  no  doubt  that  a 
popular  vote  often  expresses  public  opinion,  but  the 
immediate  question  before  us  is  whether  it  always 
does  so,  and  for  this  we  are  not  confined  to  specu- 
lations about  probabilities. 

The  possibility  that  a  popular  vote  may  not 
express  the  real  views  of  the  electorate  is  apparent 
from  the  sudden  changes  of  opinion  in  Oregon  to 
which  reference  was  made  in  the  last  chapter. 
Another  example  was  given  in  Massachusetts  some 
years  ago.     In  1903  the  legislature  passed  an  act, 

15 


226  ^Methods  of  Expressing  Public  Opinion  [§  100 

known  as  the  Luce  Law,  to  create  direct  primaries, 
with  a  provision  that  it  should  go  into  effect  in  any 
town  if  adopted  by  vote  of  the  inhabitants.  A 
number  of  towns  adopted  it  at  once,  and  repented 
almost  as  quickly.  They  went  to  the  legislature 
the  next  year,  declared  that  they  had  acted  hastily 
without  appreciating  the  effect  of  the  measure,  and 
asked  to  be  reheved  from  the  consequences  of  their 
votes.  One  representative  asserted  that  half  of 
his  fellow-townsmen  had  supposed  they  were  voting 
on  the  question  of  local  option  in  the  sale  of  liquor. 
It  so  happened  that  when  these  appeals  were  made, 
the  House  of  Representatives  was  ringing  with 
oratory-  in  favor  of  a  constitutional  amendment  for 
a  general  referendum,  and  the  spectacle  of  towns 
begging  the  legislature  to  undo  by  statute  what 
they  had  done  by  popular  vote,  contributed  largely 
to  the  rejection  of  the  amendment.^ 

100.  Delay  of  Legislation  by  Popular  Votes 

Even  if  it  could  be  assumed  that  the  popular  vote 
always  expressed  a  real  public  opinion,  there  would 
be  some  disadvantages  to  be  balanced  against  the 
benefits.  We  have  seen  that  the  initiative  may 
be  used  to  bring  forward  proposals  which,  though 
rejected,  arouse  bitter  religious  or  race  animosities 
that  had  better  not  be  stirred;  and  so  in  the  case 
of  the  referendum  although  the  people  ratify  the 
act  referred  the  mere  delay  in  enactment  may  do 
harm  to  the  community. 

1  "  Direct  Legislation,"  by  W.  Rodman  Peabody,  in  the  Political 
Science  Quarterly,  September,  1905. 


§  100]  Delay  of  Legislation  by  Popular  Votes  227 

A  case  of  this  kind  occurred  in  Oregon.  A 
referendum  was  filed  against  the  appropriation  made 
by  the  legislature  in  1905  for  the  support  of  the 
state  university.  The  act  was  ratified  at  the  next 
election  in  1906,  but  in  the  meanwhile  the  professors 
were  exposed  to  the  danger  of  receiving  no  pay  for 
the  services  they  were  rendering.  The  next  year 
the  legislature  doubled  the  appropriation,  and  again 
a  referendum  was  filed,  which  was  voted  upon  by 
the  people  in  1908  with  the  same  result  and  the 
same  treatment  of  the  instructing  staff.  Finally 
in  1911  a  special  increase  was  made  and  on  that 
occasion  the  popular  vote  went  against  the  act,  as 
well  as  against  a  special  appropriation  for  a  uni- 
versity library.  In  the  first  two  cases  the  vote 
was  in  favor  of  the  grants,  and  it  may  be  argued 
that  as  the  professors  were  willing  to  take  the  risk, 
and  eventually  received  their  pay,  no  harm  was 
done.  But  this  is  not  true.  Apart  from  the 
unfairness  of  placing  faithful  public  servants  in 
such  a  position  as  the  professors  were  forced  into, 
the  university  itself  suffers,  and  will  continue  to 
suffer,  from  the  occurrence.  Every  institution  of 
learning  depends  for  its  excellence  upon  the  high 
quality  of  its  teachers,  and  risks  of  this  nature 
which  make  one  university  less  desirable  than 
others,  tend  to  deter  the  best  men  from  accepting 
or  retaining  chairs  therein.  A  referendum  on  the 
increase  is  clearly  a  very  different  thing  from  one 
on  the  whole  appropriation,  which  enables  a  small 
minority  of  the  citizens  to  stop  a  branch  of  the 
public   service  altogether  or  impose  upon  the  em- 


228  ^Methods  of  Expressing  Public  Opinion  [§  101 

ployees  a  danger  of  intolerable  loss  of  pay.  For 
this  reason  it  is  provided  in  Missouri,  for  example, 
that  the  referendum  shall  not  apply  to  acts  making 
appropriations  for  the  current  expenses  of  the  state 
government,  for  the  maintenance  of  state  institu- 
tions or  for  the  support  of  the  public  schools. 

101.    Indirect  Effects  of  Direct  Legislation 

The  more  remote  consequences  of  any  poHtical 
institution  are  often  of  greater  importance  than 
its  immediate  results.  Opponents  of  direct  legisla- 
tion insist  that  it  will  reduce  the  importance  and 
therefore  the  character  of  the  legislature,  while 
its  advocates  claim  that  it  will  tend  to  exert  a 
greatly  beneficial  influence  upon  the  representatives. 
In  explaining  the  fact  that  a  popular  vote  was  not 
demanded  on  any  law  in  South  Dakota  for  a  number 
of  years  after  the  right  was  created,  the  Governor 
of  the  State  wrote,  "Since  this  referendum  law  has 
been  a  part  of  our  Constitution  we  have  had  no 
charter-mongers  or  railway  speculators,  no  wild-cat 
schemes,  submitted  to  our  Legislature.  Formerly 
our  time  was  occupied  by  speculative  schemes  of 
one  kind  or  another,  but  since  the  referendum  has 
been  made  a  part  of  the  Constitution  these  people 
do  not  press  their  schemes  upon  the  Legislature; 
hence,  there  is  no  necessity  of  having  recourse  to  a 
referendum."^  If  such  a  change  is  permanently 
accomplished  it  means  an  improvement  of  the 
first  magnitude  in  a  number  of  states;  but  last- 
ing results   are  not    produced   at    once,  and    many 

'  Quoted  in  the  Arena,  Aug.  190£,  p.  Hi. 


§  101]   Indirect  Effects  of  Direct  Legislation   229 

years  must  pass  before   the  final   account  can   be 
made  up. 

We  turn  naturally  to  Oregon,  as  the  state  that 
has  made  the  greatest  use  of  direct  legislation,  to 
inquire  the  effect  upon  the  representative  body. 
We  have  opinions  upon  the  subject  expressed  by 
the  leading  opponent  and  advocate  of  the  insti- 
tution. Mr.  Frederick  V.  Hohnan  remarked  in 
February,  1911,  "In  reply  to  the  contention  that 
this  'reserve'  power  would  improve  the  character 
of  the  legislature  I  will  state,  without  fear  of  con- 
tradiction that  there  has  been  no  substantial  change 
in  the  kind  of  legislators  since  the  adoption  of  this 
amendment."  ^  On  the  other  hand  Mr.  William 
S.  U'Ren,  speaking  of  the  legislative  session  of  1911, 
said,  "Taken  altogether,  the  session  was  the  most 
complete  demonstration  we  have  had  in  Oregon  of 
the  need  for  a  proportional  system  of  electing 
members  of  the  legislature,  and  for  a  complete 
reorganization  of  the  state  government  for  the  pur- 
pose of  getting  business  results  instead  of  politics. 
.  .  .  The  members  of  the  legislature  were  a  very 
fair  lot  of  men  individually  and  above  the  average 
of  intelligence,  but  the  session  was  one  of  the  worst 
Oregon  has  had  for  log-rolling,  hasty  action  and 
partisan  voting,  with  small  consideration  for  the 
merits  of  bills.  The  legislature  was  not  at  all 
representative  of  the  people."  ^  This  is  not  so  en- 
couraging, although  some  allowance  may  be  fairly 
made    for    exaggeration  by  men  who  are  urging  a 

1  Chicago  Civic  Federation  Bulletin,  No.  3,  pp.  11-12. 

2  Equity,  July,  1911,  p.  113. 


230  Methods  of  Expressing  Public  Opinion  [§  101 

new  reform  on  the  one  hand,  or  extoUing  the  merits 
of  one  they  have  achieved  on  the  other. 

A  reform  often  works  better  at  tlie  outset  than  it 
does  later,  because  the  moral  impulse  that  carries 
it  through  causes  good  men  to  take  part  in  adminis- 
tering it.  The  real  test  comes  later  when  the  first 
enthusiasm  has  cooled,  when  the  reformers  are  busy 
with  other  things,  and  the  professional  politician, 
whose  trade  depends  on  being  at  work  while  others 
are  not,  has  had  a  chance  to  try  his  hand  at  the  new 
machinery.  We  do  not  know  that  a  combination 
of  the  boss  and  special  interests  will  not  be  able  to 
control  the  smaller  popular  vote  cast  on  measures 
as  completely  as  the  larger  popular  vote  cast  for 
representatives.  It  will  take  time,  as  it  took  time 
to  control  elections,  but  the  intrinsic  difficulties 
are  not  necessarily  greater  in  one  case  than  in  the 
other.  It  has  been  said  that  reformers  can  succeed 
only  by  changing  the  political  machinery  faster 
than  the  professional  politicians  can  learn  to  manip- 
ulate it,  but  that  is  a  confession  of  failure  for 
democracy.  The  real  question  is  whether  direct 
legislation  is  so  adjusted  to  the  means  of  forming 
a  real  public  opinion  that  the  people  can  decide 
intelligently  all  the  questions  presented  to  them 
without  unusual  effort,  and  without  the  aid  of 
people  who  find  a  profit  in  steering  them.  Badly 
adjusted  machinery  is  the  opportunity  of  the  boss 
and  the  combination.  Professional  politicians  ob- 
tained control  of  elections  because  the  people  were 
called  upon  to  do  more  than  they  could  do  without 
help,  and  the  more  the  people  are  asked  to  decide 


§  102]     Measures  Suited  for  Popular  Votes     231 

questions  in  which  they  are  not  as  a  whole  seriously 
interested,  the  greater  will  be  the  opening  for  the 
boss  and  his  allies. 

102.   Measures  Suited  for  Popular  Votes 

All  this  does  not  mean  that  the  referendum  and 
initiative  will  not  prove  valuable  when  used  in  the 
appropriate  way.  It  means  simply  that  they  are 
not  so  perfect  as  some  of  their  advocates  appear 
to  assume,  and  that  they  ought  to  be  used  with  a 
careful  attention  to  the  conditions  in  which  they 
can  be  successfully  applied.  The  earlier  use  of  the 
referendum  in  America  was  restricted  to  constitu- 
tional questions  and  to  certain  specified  matters, 
for  the  most  part  of  a  kindred  nature;  but  in  the 
recent  adoption  of  a  general  referendum  no  serious 
attempt  has  been  made  to  consider  upon  what 
classes  of  questions  a  genuine  public  opinion  can 
be  readily  formed  and  to  confine  popular  votes  to 
these. 

One  inherent  difficulty  lies  in  the  fact  that  the 
people  are  asked  to  vote  upon  a  complete  statute, 
which  is  usually  hard  to  understand,  however  well 
it  may  be  drawn,  because  it  involves  many  facts 
connected  with  the  application  of  the  general 
principle.  Of  these  the  public  is  more  or  less 
ignorant,  as  well  as  of  the  reason  for  provisions 
made  to  meet  valid  objections.  Such  a  difficulty 
is  especially  great  in  acts  affecting  public  service 
companies  or  granting  franchises,  and  involving 
in  the  main  applications  of  principles,  on  which 
there  is  often  no  dispute,  to  cases  where  most  people 


232  Methods  of  Expressing  Public  Opinion  [§  10-2 

have  strong  prejudices  on  both  sides  but  know 
very  Httle. 

The  class  of  measures  in  which  legislators  delib- 
erately defy  public  opinion  is  that  which  involves 
jobbery,  but  this  is  a  class  about  which  the  people 
at  large  are  little  competent  to  form  opinions;  and 
therefore  the  referendum  is  least  likely  to  furnish  a 
trustworthy  remedy  in  the  cases  where  the  repre- 
sentative body  most  grossly  misrepresents  the 
public.  If  the  people  cannot,  by  election  or  other- 
wise, provide  a  body  that  can  be  trusted  to  deal 
with  such  matters  honestly  and  wisely,  then  a 
popular  vote,  however  ignorant,  however  far  from 
expressing  a  real  public  opinion,  is  better  than 
jobbery;  but  it  is  at  best  an  imperfect  instrument 
for  the  purpose.  So  strong  is  the  distrust  of  the 
legislature  in  affairs  of  this  kind,  that  in  some 
states  —  as  in  Maine,  for  example  —  it  is  provided 
that  a  vote  of  emergency  withdrawing  an  act  from 
the  referendum  shall  not  be  used  on  acts  granting 
franchises,  a  precaution  that  may  be  required  by 
the  conditions. 

If  it  be  true  that  the  people  are  more  capable  of 
forming  opinions  on  general  principles  and  moral 
issues  than  on  a  mass  of  details,  then  the  referendum 
would  appear  to  accomplish  its  object  better  in 
questions  of  the  former  class,  and  details  should  be 
referred  to  popular  vote  as  little  as  the  trustworthi- 
ness of  the  public  servants  will  permit.  In  referring 
to  Swiss  examples  in  this  connection  we  must 
remember  that  everywhere  in  continental  Europe 
the  statutes  go  into  detail  less  than  they  do  in  the 


§  103]         Will  not  Bring  the  Millennium         233 

United  States;  that  much  which  is  embodied  in 
the  text  of  an  American  act  is  left  in  Europe  to  be 
completed  by  executive  ordinance.  The  objections 
to  submitting  to  popular  vote  a  comprehensive  and 
complex  law,  or  one  requiring  an  accurate  knowledge 
of  unfamiliar  facts  is  even  greater  in  the  case  of 
the  initiative,  and  could  be  prevented  without 
impairing  seriously  the  object  of  that  procedure. 

103.   Direct  Legislation  will  not  Bring  the  Millennium 

That  direct  popular  action  upon  laws,  when 
wisely  and  scientifically  applied,  will  prove  highly 
useful  in  certain  conditions  of  society  we  may  well 
believe  without  expecting  it  to  usher  in  the  millen- 
nium. All  theories  based  on  the  assumption  that 
the  multitude  is  omniscient  are  fallacious,  and  so 
are  all  reforms  that  presuppose  a  radical  change  in 
human  nature.  It  is  easy  enough  to  prove  that 
any  form  of  government  will  work  like  a  charm  if 
everyone  who  has  a  share  in  the  public  authority 
is  spotless  in  wisdom  and  character;  and  there  has 
probably  never  existed  a  political  system  of  which 
men  have  not  tried  to  demonstrate  the  perfection. 
Mankind  is,  and  so  far  as  w^e  can  see  is  likely  to  be, 
composed  of  some  very  good  people,  some  very  bad 
ones,  and  a  large  number  who  are  well  meaning,  but 
more  or  less  indolent  and  indifferent  when  their 
personal  sympathies  or  interests  are  not  touched; 
and  the  test  of  any  institution  is  the  fruit  it  will 
bear  in  a  community  of  that  kind. 

People  are  constantly  expecting  the  millennium 
from  some  political  contrivance  that  proves  after- 


234  Methods  of  Expressing  Public  Opinion  [§  103 

wards  disappointing,  and  Americans  from  their 
love  of  machinery  are  perhaps  pecuharly  susceptible 
to  this  feehng.  One  panacea  of  promise  in  its 
day  was  representative  government;  another  was 
universal  suffrage;  a  third,  the  checks  and  balances 
of  the  American  constitutional  system.  The  de- 
basement of  party  government  in  the  United  States 
has  been  traced  to  the  state  and  national  nominat- 
ing conventions,  which  replaced  the  party  caucuses 
in  the  legislatures  and  in  Congress;^  but  in  fact 
the  convention  was  adopted  because  the  legislative 
caucus  was  thought  undemocratic.  Let  us  not  be 
led  astray  by  generalizations.  Each  institution  has 
its  limitations  and  will  work  well  only  within  those 
limits. 

It  is  a  significant  fact  that  the  demand  for  the 
referendum  and  initiative  is  as  a  rule  strongest  in 
those  states  where  the  constitutions  are  longest  and 
most  elaborate  in  their  restraints  upon  the  legisla- 
ture, where  that  body  has  been  most  severely  limited 
in  the  frequency  and  duration  of  its  sessions;  just 
as  the  recall  of  judges  is  urged  with  the  greatest 
earnestness  where  they  are  popularly  elected  for 
short  terms,  rather  than  where  they  are  appointed 
for  life.  In  short  the  demand  has  generally  been 
loudest  where  the  reliance  upon  the  integrity  and 
capacity  of  the  representatives  has  been  least.  Now 
if  direct  legislation  were  advocated  on  the  ground 
that  while  representative  democracy  had  been  a  suc- 
cess this  would  be  better  still,  well  and  good;  but 

1  Memorial  Relative  to  a  National  Initiative  and  Referendum, 
May  25,  1908.    Senate  Doc.,  60  Cong.,  1  Sess.,  No.  516,  pp.  4-5. 


§  103]         Will  not  Bring  the  Millennium         235 

if  it  is  urged  as  an  attempt  to  retrieve  a  failure 
by  the  people  to  work  representative  institutions, 
then  it  is  the  result  not  of  confidence,  but  of  distrust 
in  the  capacity  of  the  people,  and  does  not  augur 
well  for  the  future  of  popular  government. 


Part  IV 

The  Regulation  of  Matters  to  which  Public 
Opinion  Cannot  Directly  Apply 


Part  IV 

The  Regulation  of  Matters  to  which  PubHc 
Opinion  Cannot  Directly  Apply 


CHAPTER  XVI 

REPRESENTATION   BY  SAMPLE 

The  fundamental  assumption  of  popular  govern- 
ment is  that  public  opinion  should  be  carried  into 
effect,  provided,  of  course,  that  it  is  an  enduring 
opinion,  not  a  mere  passing  whim  liable  to  be  soon 
reversed;  and  there  are  two  reasons  why  this  should 
be  done.  The  first  is  based,  not  on  any  supposition 
that  the  opinion  of  the  people  is  always  right,  but 
on  the  belief  that  it  is  on  the  whole  more  likely  to 
be  right  than  the  opinion  of  any  other  person  or 
body  which  can  be  obtained.  The  second  reason  is 
that  contentment  and  order  are  more  general,  and 
the  laws  and  public  officers  are  better  obeyed,  when 
in  accord  with  popular  opinion,  than  otherwise. 
It  is  unnecessary  to  discuss  here  the  validity  of 
these  reasons,  for  we  are  dealing,  not  with  the 
theoretical  merits,  but  the  methods  of  operation, 
of  democracy.  It  is  enough  for  us  that  these 
principles  are  the  assumptions  on  which  popular 
government  rests. 

In   the   preceding   chapters   we   have   considered 

239 


240  Where  Pul^lic  Opinion  Cannot  Apply    [§  104 

under  what  conditions  a  genuine  pubhc  opinion  can 
exist,  by  what  means  and  to  what  extent  it  can  be 
faithfully  expressed;  and  we  have  seen  that  there 
are  many  matters  on  which  the  public  can  have 
no  real  opinion.  How  can  these  be  regulated  in  a 
democracy? 

104.   Three  Methods  of  Delegating  Authority 

The  power  to  deal  with  questions  which  the 
people  do  not  decide  directly  must  be  committed 
to  some  authority  selected  for  the  purpose,  and  the 
persons  so  designated  may  be  intended  to  act  in 
any  one  of  three  ways.  (1)  They  may  be  chosen  to 
express  the  opinion  of  the  public,  when  there  is 
one;  (2)  they  may  be  appointed  to  exercise  their  owti 
peculiar  knowledge  or  skill  in  acting  upon  the 
questions  that  come  before  them;  (3j  they  may  be 
set  apart  to  use  their  judgment  as  fair  samples  of 
the  people,  on  the  supposition  that  their  opinion 
will  be  the  same  that  the  public  itself  would  form 
if  it  could  spend  time  enough  to  examine  the  matter 
thoroughly.  Of  course  these  objects  are  not  rigidly 
separated  in  practice.  \n  officer  of  state  may  be 
expected  to  act  in  two,  or  it  may  be  in  all  three, 
ways.  He  may  be  in  some  matters  the  mouthpiece 
of  public  opinion,  in  others  he  may  exercise  his 
special  professional  skill,  and  in  still  more  he  may 
act  as  any  intelligent  citizen  would;  but  it  is  only 
by  keeping  the  three  objects  distinct  in  our  own 
minds  that  we  can  have  clear  ideas  about  them. 
Ix't  us,  therefore,  take  examples  where  each  of  them 
stands  alone. 


§  104]     Methods  of  Delegating  Authority       241 

A  member  of  the  electoral  college  for  the  choice 
of  the  President  is  selected  solely  to  express  the 
opinion  of  the  voters.  He  is  not  to  use  his  own 
peculiar  knowledge,  or  to  make  up  his  mind  as  an 
impartial  citizen  upon  the  evidence  he  hears,  but 
simply  to  cast  his  vote  in  accordance  with  the 
mandate  he  received  at  the  polls.  Of  this  function 
of  expressing  the  popular  will  nothing  more  need  be 
said  here,  because  it  has  already  been  treated  in 
the  discussion  of  representative  government.  The 
problem  before  us  now  is  that  of  dealing  with  mat- 
ters upon  which  the  public  has  no  opinion,  and 
these  must  be  delegated  to  persons  who  are  to  use 
their  own  special  qualifications  or  to  act  as  samples 
of  the  people. 

As  an  example  of  a  person  selected  to  use  his  own 
peculiar  capacity  we  may  take  the  case  of  a  surgeon 
at  a  city  hospital.  He  is  certainly  not  intended  to 
carry  out  the  popular  opinion  in  operating  on  a 
patient,  nor  is  he  supposed  to  act  as  an  average 
member  of  the  community  might  be  expected  to 
do  with  the  same  facts  before  him.  On  the  con- 
trary he  is  employed  to  use  his  personal  knowledge 
and  skill,  and  he  is  selected  because  his  professional 
opinion  is  believed  to  excel,  and  therefore  to  differ 
from,  that  of  the  unskilled  man. 

The  same  principle  applies  to  a  general  and  a 
judge.  In  conducting  a  campaign  or  deciding  a 
point  of  law  they  ought  not  to  listen  for  the  signs 
of  popular  applause,  nor  do  we  appoint  civilians 
as  generals,  or  laymen  as  judges.  Everyone  would 
be  shocked  if  generals  were  ignorant  of  tactics,  or 

16 


S-lt^   Where  Public  Opinion  Cannot  Apply   [§  105 

if  judges  were  not  laN\yers  by  profession  and  failed 
in  deciding  cases  to  apply  the  science  of  the  law. 
This  function  of  special  qualifications  in  government 
will  be  discussed  more  fully  in  the  chapters  on  the 
use  of  experts  in  the  public  service. 

105.   The  Jury  a  Sample  of  the  Public 

Of  the  third  method,  that  of  public  opinion  by 
sample,  we  have  a  singularly  good  illustration  at 
hand  in  the  Common  Law  jury  —  an  institution 
used  for  matters  about  which  the  people  at  large 
cannot  form  a  real  opinion  based  upon  familiarity 
with  the  facts.  Service  on  a  jury  is  irksome;  to 
sit  on  more  than  one  jury  at  a  time  is  impossible; 
to  read  the  evidence  in  all  the  cases  that  are  tried 
in  a  single  populous  county  is  beyond  the  powers 
of  any  citizen;  and  therefore  the  whole  people 
cannot  by  any  stretch  of  the  imagination  be  sup- 
posed to  possess  knowledge  enough  of  the  evidence 
in  all  the  cases  in  court  to  have  an  intelligent  opinion 
of  them.  But  the  jurv'-men  are  a  sample  of  the 
great  and  general  public,  whose  verdict  may  be 
taken  to  express  what  the  opinion  of  the  whole 
people  would  be  if  everyone  heard  the  evidence; 
and  they  are  drawn,  as  we  draw  a  sample  from  a 
bale  of  merchandise,  by  a  process  designed  to 
secure  average,  not  selected,  specimens. 

Of  course  the  sample  must  not  only  be  a  fair  one, 
but  it  must  remain  so.  It  must  not  be  open  to 
corrupting  influences  or  pressure,  and  that  condition 
might  prevent  the  use  of  the  jury  in  some  countries. 
The  assertion  has  been  made,  for  example,  that  it 


§  100]     The  Object  of  Rotation  in  Office     243 

cannot  be  adopted  for  the  natives  in  India,  because 
they  would  not  convict  rich  offenders.  Even  with 
all  our  traditions,  all  our  inherited  experience,  the 
jury  is  not  a  perfect  instrument;  and  everyone 
knows  that  it  would  be  a  mere  mockery  if  it  were 
not  encompassed  by  elaborate  safeguards  to  in- 
sure an  impartial  hearing,  deliberate  consideration, 
and  a  judicial  attitude.  The  jurors  are  brought 
into  the  court  room,  and  solemnly  instructed  in 
their  duties  by  the  judge;  they  are  seated  together, 
apart  from  other  people,  while  the  case  is  being 
tried;  they  are  compelled  to  hear  all  the  evidence, 
and  permitted  to  hear  no  evidence  whose  tendency 
to  cause  a  bias  is  out  of  proportion  to  its  proper 
probative  value;  newspapers  are  restrained  under 
penalty  of  contempt  of  court  from  prejudging  the 
case  during  the  trial;  the  questions  at  issue,  which 
have  been  carefully  defined,  are  argued  by  counsel 
for  each  side;  then  the  judge  charges  the  jurors 
gravely;  and  finally  their  verdict  must  be  unani- 
mous.^ Moreover,  the  judge  can  order  a  new  trial 
if  anything  irregular  or  improper  has  occurred. 

106.   The  Object  of  Rotation  in  Office 

Public  opinion  by  sample  has  played  a  larger  part 
in  popular  government  than  is  commonly  recognized, 
and  many  devices  have  had  that  end  more  or  less 
consciously  in  view.  This  is  probably  true,  for 
example,  of  the  principle  of  rotation  in  office.  No 
doubt  jealousy,  and  a  conviction  that  everyone  in 

^  Cf.  Graham  Wallas,  Human  Nature  in  Politics,  pp.  209-10  on 
the  impressiveness  of  the  formalities  surrounding  the  jury. 


244   Where  Public  Opinion  Cannot  Apply   [§  107 

turn  has  a  right  to  enjoy  the  sweets  of  authority,  had 
something  to  do  with  it;  but  we  must  not  fail  to 
observe  also  the  feeling  that  a  new  man,  coming 
fresh  from  the  people,  will  be  in  closer  touch  with 
popular  opinion  and  will  be  free  from  official  habits, 
or,  in  other  words,  a  fairer  sample  of  the  public. 
This  is  the  reason  that  jurj^-men  serve  short  periods 
and  are  constantly  replaced  by  a  fresh  panel. 

To  show  that  this  phenomenon  was  perfectly 
natural,  not  due  to  the  "  political  cussedness  "  of  our 
forefathers,  as  many  good  people  would  seem  inclined 
to  imply,  an  example  may  be  cited  of  ver^'  recent 
occurrence  and  far  removed  from  politics.  Some 
years  ago  a  wave  of  democratic  sentiment,  of  more 
than  ordinary-  strength,  swept  over  the  under- 
graduates at  Harvard  College;  and  one  of  its  first 
results  was  the  adoption  of  a  rule  that  no  class 
president  should  hold  office  for  two  successive  years. 
From  the  standpoint  of  utility  this  was  a  misfortune, 
for  the  president  of  a  class  is  a  public-spirited  officer 
of  great  importance,  who  has  the  welfare  of  his 
classmates  very  much  at  heart  and  whose  value 
grows  as  he  comes  to  know  them  better.  Xor  was 
it  a  case  where  the  number  of  men  who  could  hope 
to  fill  the  place  was  considerable;  but  it  seems  to 
have  been  felt,  somewhat  blindly,  to  be  in  accord 
with  democratic  principles. 

107.   The  Use  of  the  Lot 

Another  device  of  the  same  kind  has  been  the 
selection  of  public  officers  by  lot.  Commentators 
have  expended  much  ingenuity  in  trying  to  explain 


§  107]  The  Use  of  the  Lot  245 

why  Aristotle  and  his  contemporaries  regarded  the  use 
of  the  lot  as  democratic;  and  on  the  part  of  writers 
in  the  English  language  this  is  the  more  remark- 
able because  they  have  had  the  example  of  the  Com- 
mon Law  jury  staring  them  in  the  face.  No  doubt 
election  in  Greece  involved  a  danger  of  the  choice 
of  rich  men,  and  with  party  lines  drawn  as  they 
were  that  meant  a  peril  to  the  existing  form  of  govern- 
ment in  a  democratic  state.  It  is  not  improbable, 
however,  that  one  reason  for  using  the  lot  to  fill  the 
public  offices  at  Athens  was  the  same  that  has  caused 
it  to  be  used  for  centuries  in  the  case  of  the  jury. 
Mr.  Headlam  remarks  that  "mediocrity  in  office  was 
its  object,  because  this  was  the  only  means  of  ensuring 
that  not  only  the  name  but  also  the  reality  of  power 
should  be  with  the  Assembly."  ^  Mediocrity,  or  in 
other  words  an  average  sample  of  the  public,  is  cer- 
tainly the  object  in  drawing  a  jury  by  lot,  for  im- 
partiality could  be  secured,  as  in  the  case  of  judges, 
by  other  means.  Mr.  Headlam  is  no  doubt  right 
that  one  object  in  seeking  mediocrity  was  to  insure 
the  supremacy  of  the  Assembly;  but  may  not  the 
Greeks,  like  our  own  ancestors  when  insisting  on 
rotation  in  office,  have  felt  the  need  of  selecting  the 
public  officers  from  men  on  a  level  with  the  ordinary 
citizen,  and  of  keeping  them  on  the  same  plane. 

The  lot  was  used  freely  in  the  mediaeval  cities 
also,  and  notably  in  Venice  where  it  had  its  most 
celebrated  application  in  the  machinery  for  the 
election  of  the  Doge.     The  first  step  was  the  appoint- 

1  Election  by  Lot  at  Athens,  Cambridge  Hist.  Essays  (No.  IV.), 
p.  32. 


246  Where  Public  Opinion  Cannot  Apply   [§  108 

ment  by  the  Great  Council,  of  a  committee  which 
was  then  alternately  reduced  by  lot  and  enlarged  by 
coaptation  until  its  membership  depended  very  much 
on  chance;  and  thus  the  choice  of  the  Doge  was 
placed  in  the  hands  of  a  body  whose  composition 
could  not  be  determined  by  the  personal  or  party 
factions  in  the  Council.  To  cut  off  the  political 
parties  from  activity  in  the  election  of  the  chief 
magistrate  of  the  country  may  seem  strange,  but  we 
must  remember  that  the  mediaeval  Italian  states 
were  torn  by  factions  based  upon  family  quarrels, 
rather  than  divided  into  parties  by  differences  of 
opinion  on  general  policy. 

108.   Selected  Samples  of  the  Public 

The  Doge  was  elected  by  what  may  be  called  a 
sifted  or  selected  sample  of  the  Great  Council;  and 
this  brings  us  to  another  point.  A  sample  of  the 
public,  in  order  to  accomplish  its  purpose,  is  not 
necessarily  an  average  sample,  but  may  be  a  selected 
sample,  or  a  sample  from  a  selected  body.  The 
English  special  jury  is  drawn  from  persons  with  some 
property  qualification,  and  of  late  years  it  has  been 
growing  in  popularity  with  litigants,  who  have  a 
right  to  demand  it  if  they  please.  Such  a  jury  is 
intended  to  represent,  not  the  average  public,  but 
the  average  of  the  better  educated  part  of  the  public; 
and  in  the  same  way  public  officers,  not  appointed 
by  lot,  but  elected  by  the  people  and  therefore 
presumably  chosen  for  some  superiority  of  intelli- 
gence, experience,  or  character,  may  in  fact  be  used 
as   selected   samples   of   the  public.     The   question 


§  108]       Selected  Samples  of  the  Public        247 

whether  they  act  in  this  way,  or  as  men  designated 
to  exercise  special  personal  qualities,  depends  on 
their  attitude  towards  their  duties  as  well  as  on 
the  method  of  selection.  A  general  or  a  surgeon 
who  endeavored  to  act  as  a  man  of  good  sense,  but 
without  special  training,  might  act  under  the  circum- 
stances would  be  unfit  for  his  place;  but  this  is  not 
true  of  a  member  of  the  legislature  or  even  of  a 
governor.  In  fact  a  large  part  of  their  work  consists 
in  doing  that  very  thing,  and  in  so  far  as  they  do  it 
they  are  acting  as  samples,  as  selected  samples  no 
doubt,  but  still  as  samples  of  the  general  public. 

The  vast  number  of  questions  on  which  the  public 
cannot  form  an  opinion  must,  as  we  have  seen,  be 
referred  to  someone  for  decision;  and  when,  as  com- 
monly happens,  the  difficulty  consists  not  in  a  lack 
of  technical  knowledge  or  fitness,  but  simply  in  a 
lack  of  familiarity  with  the  facts,  the  matter  may 
properly  be  referred,  not  to  an  expert,  but  to  a  sam- 
ple, and  preferably  a  selected  sample,  of  the  public. 
No  doubt  expert  assistance  is  usually  needed,  but 
the  decision  can  often  be  confided  to  the  good  judg- 
ment of  intelligent  and  faithful  men  without  profes- 
sional qualifications.  This  is  true,  for  instance,  in 
applying  general  principles  of  legislation  to  local  and 
private  matters,  where  the  main  problem  is  to  deter- 
mine whether  the  facts  in  the  particular  case  justify 
the  application  of  the  principle.  The  persons  in- 
trusted with  that  duty  are  performing  substantially 
the  function  of  a  selected  jury,  and  their  conclusion 
may  be  supposed  to  be  that  which  the  intelligent  pub- 
lic would  reach  if  it  could  conduct  the  investigation 


248   Where  Public  Opinion  Cannot  Apply    [§  109 

directly.  But  in  order  that  the  result  may  be  satis- 
factory the  persons  selected  must  be  impartial,  must 
act,  not  on  their  own  knowledge,  but  on  evidence, 
and  the  procedure  must  be  such  as  to  insure  a  full 
and  fair  presentation  of  the  question. 

109.   Private  Bill  Committees  in  Parliament 

The  select  committees  to  which  private  and  local 
bills  are  referred  in  the  British  Parliament  furnish 
an  example  of  such  a  procedure.  Until  about  sixty 
years  ago  these  committees  were  made  up  in  large 
part  of  knouTi  advocates  and  opponents  of  the 
measures  to  be  considered,  in  order  that  they  might 
be  able  to  urge  their  views;  but  first  in  the  Lrords, 
and  afterwards  in  the  Commons,  a  practice  was 
adopted  of  composing  them  of  a  small  number  of 
wholly  impartial  members,  whose  duties  should  be 
of  a  judicial  character.  The  committee  sits  like  a 
court,  and  hears  evidence  and  argument  presented 
by  barristers  retained  on  behalf  of  the  promoters 
and  opponents  of  the  bill.  The  hearing  is  in  effect 
a  trial  of  a  cause  between  contending  parties,  who 
seek  to  prove  their  claims  as  they  would  in  a 
suit  at  law.  In  that  trial  the  members  of  the 
committee  play  the  part  of  jurors,  save  that  being 
men  of  broader  education  and  experience  than 
ordinary  jury-men,  and  being  fortified  by  the  august 
traditions  of  Parhament,  the  members  do  not  need 
to  be  surrounded  by  the  same  safeguards.  In  its 
composition  an  EngHsh  private-bill  committee  is 
essentially  a  sample  of  the  House.  Por  chairman, 
indeed,  a  man  is  selected  who  has  had  experience  in 


§  110]     Committee  Hearings  in  America       249 

work  of  this  kind,  but  the  rest  of  the  members  are 
chosen  from  the  body  of  the  House  without  regard 
to  special  fitness,  simply  to  go  through  a  mass  of 
facts  which  Parliament  itself  could  not  undertake 
to  examine;  and  it  is  because  they  are  a  fair  sample 
that  the  House  almost  always  ratifies  their  con- 
clusions. 

110.    Committee  Hearings  in  America 

The  same  function  is  performed  to  a  less  extent 
by  the  committees  of  American  legislatures.  The 
members,  no  doubt,  are  by  no  means  all  selected  on 
the  basis  of  impartiality.  As  in  the  old  committees 
of  Parliament  on  private  bills  some  of  them  hold 
decided  view^s  on  the  policy  to  be  pursued,  and  an 
effort  is  made  to  appoint  men  to  the  committees 
on  the  subjects  in  which  they  are  interested.  Still 
many  of  the  members  are  impartial  in  regard  to  the 
bills  that  come  before  them,  and  this  cannot  fail  to 
happen  where  every  member  of  the  legislative  body 
must  be  given  a  seat  on  some  committee.  More 
important  is  the  fact  that  the  committees  often  give 
public  hearings,  and  in  doing  so  act  in  a  semi-judicial 
character. 

The  subject  of  public  hearings  by  American  legis- 
lative committees  has  hitherto  received  far  less 
attention  than  it  deserves.  They  do  not  seem  to 
have  been  described  or  discussed  in  any  book  until 
the  recent  work  of  Professor  Reinsch  on  American 
Legislatures,  and  he  devotes  to  the  subject  less 
than  one  page.^     Yet  they  perform  a  service  highly 

1  P.  174. 


250  Where  Public  Opinion  Cannot  Apply    [§  ill 

beneficial  in  some  states,  and  capable  of  increasing 
usefulness  in  others.  They  are  an  American  institu- 
tion which  exists  in  no  other  country.  In  England  a 
private  bill  committee  hears  evidence  presented  by 
the  parties  who  have  a  legal  interest  in  the  matter, 
but  it  hears  no  one  else;  while  a  select  committee 
on  a  public  bill  examines  only  the  witnesses  it  chooses 
to  summon,  and  although  a  person  of  sufficient 
prominence  would  no  doubt  be  summoned  if  he 
wished  to  appear,  that  is  not  at  all  equivalent  to  a 
public  hearing  where  everyone  has  a  right  to  be 
present  and  state  his  views.  Xor  has  the  writer  ever 
met  with  anything  of  this  kind  in  any  other  legislative 
body  in  the  world. 

111.   Public  Hearings  in  Massachusetts 

The  public  hearing  is  a  familiar  institution  through- 
out American  political  life,  being  used  not  only  by 
legislative  bodies,  but  occasionally  also  by  councils, 
committees  and  administrative  officers  of  all  kinds; 
and  in  fact  a  request  for  it  is  hard  to  refuse.  It  has 
been  developed  very  completely  in  the  legislature 
of  Massachusetts,  where  it  has  become  so  much  a 
regular  part  of  the  procedure  that  every  committee 
always  gives  a  public  hearing  on  every  bill  if  any- 
one wants  to  be  heard.  The  hearings  are  regularly 
advertised  in  the  newspapers,  and  in  the  case  of  any 
particular  bill  a  special  notice  is  sent  to  a  person  who 
asks  for  it.  Ordinarily  everj^one  has  a  chance  to 
express  his  opinions;  but  when  the  number  of  people 
attending  is  large  —  and  it  may  run  into  the  hun- 
dreds —  a  lawyer  is  usually  employed  on  each  side 


§  111]    Public  Hearings  in  Massachusetts      251 

by  the  chief  supporters  and  remonstrants.  He  is 
recognized  by  the  committee  as  counsel  for  his  clients, 
and  takes  charge  of  the  case,  presenting  the  evidence 
and  arguments  as  he  thinks  best.  In  fact  the  hearing 
is  conducted  much  like  a  trial  in  court,  save  that 
the  strict  legal  rules  of  evidence  are  not  applied. 

In  American  legislatures  every  bill  when  presented 
is  regularly  referred  to  one  of  the  many  standing 
committees,  and  in  Massachusetts  all  the  commit- 
tees of  that  kind,  except  those  on  the  Judiciary,  on 
Ways  and  Means,  and  on  Elections,  are  joint  bodies 
representing  both  branches  of  the  legislature.  Even 
the  few  separate  committees  often  sit  jointly,  so 
that  a  hearing  before  a  single  body  almost  always 
suffices  for  both  houses,^  a  condition  which  tends  to 
enhance  the  importance  of  the  hearing. 

The  figures  for  a  session  will  show  how  universally 
hearings  are  granted  in  Massachusetts,  and  how 
freely  the  public  uses  the  privilege. ^  In  the  year 
1910,  the  bills  and  petitions  referred  to  committees 
numbered  1634.  On  33  of  them  no  hearing  took 
place,  either  because  they  were  sent  to  some  com- 
mission for  consideration,  or  because  they  were 
introduced  late  in  the  session  and  pushed  through 
in  haste.  On  the  remaining  98  per  cent,  hearings 
were  given  on  one  or  more  days,  in  1432  cases  the 
hearing  being  finished  at  the   first  sitting,  in  138  a 

^  Of  the  1634  bills  and  petitions  referred  to  committees  in  1910, 
only  thirty-five  were  considered  separately  by  a  committee  representing 
one  house. 

2  These  statistics  were  compiled  for  the  author  by  Mr.  Henry  W. 
Cleary  from  the  weekly  editions  of  the  Bulletin  of  Committee  Hear- 
ings issued  by  the  legislature. 


252   AYliere  Public  Opinion  Cannot  Apply  [§111 

second  day  being  required,  in  19  a  third  day,  in  10 
four  days,  in  4  five  days,  in  4  six  days,  in  3  seven 
days,  while  one  measure  consumed  twelve  days. 

It  must  be  observed  that  this  procedure  applies  to 
bills  of  all  kinds,  public,  private,  and  local,  and  is 
thus  a  part  of  the  regular  machinery  for  legislation 
of  every  class.  On  matters  of  a  purely  local  or  private 
nature  the  people  who  appear  are,  of  course,  mainly 
those  interested  therein,  but  on  public  measures 
leading  citizens  of  the  state  constantly  attend  and 
express  their  opinions.  This  is  true  of  questions 
political,  philanthropic,  educational,  and  in  fact  of 
all  matters  touching  the  general  welfare.  Xor  is  the 
attendance  by  any  means  confined  to  officers  and 
members  of  organizations  formed  to  promote  a  public 
object,  but  extends  to  people  of  all  sorts,  and  thus 
the  legislature  has  a  chance  to  learn  the  state  of 
mind  of  the  community  in  all  its  phases. 

By  this  process  of  hearing  evidence  and  argument 
the  committee  acquires  a  semi-judicial  attitude. 
It  comes  to  look  on  itself  as  sitting  in  judgment  upon 
the  matters  presented  to  it,  rather  than  as  acting  on 
its  own  initiative;  and  this  to  an  extent  that  is  at 
times  surprising.  Some  years  ago  a  most  high- 
principled  member  of  the  Massachusetts  House,  in 
talking  about  a  bill  which  he  thought  very  bad, 
remarked  that  the  legislature  could  not  be  blamed 
for  passing  it  if  the  citizens  who  ol)jected  to  it  would 
not  oppose  it  before  the  committee. 

In  the  best  sense  the  procedure  is  extremely 
democratic,  for  it  gives  the  whole  people  a  chance 
to  take  part  in  legislation    at    the  formative  stage. 


§111]    Public  Hearings  in  Massacliusetts      253 

But  it  is  })y  no  means  democratic  in  the  false  sense 
that  the  opinions  of  all  men  are  given  equal  impor- 
tance. The  views  presented  are  weighed,  in  accord- 
ance with  the  knowledge  of  the  subject  shown  by  the 
witnesses  and  with  their  standing  in  the  community. 
The  people  who  address  the  committee  are  not 
regarded  as  so  many  voters  to  be  conciliated,  be- 
cause they  cannot  be  constituents  of  more  than  one 
or  two  of  the  members,  and  may  very  well  not  be 
constituents  of  any  of  them.  A  committeeman  from 
New  Bedford,  for  example,  may  have  the  greatest 
respect  for  the  opinion  of  a  prominent  citizen  of 
Boston,  but  he  does  not  ordinarily  care  a  straw  for 
his  vote.  So  far  as  he  is  conscientious  and  disinter- 
ested his  object,  after  listening  to  the  testimony,  is  to 
discover  what  ought  to  be  done.  One  is,  therefore, 
justified  in  speaking  of  the  committee  as  a  sample  of 
the  legislature,  set  apart  to  hear  evidence  which  the 
whole  body  could  not  hear,  and  which  without  such  a 
procedure  could  not  be  presented  at  all. 

If  in  the  case  of  local  and  private  matters  the 
committees  could  be  freed  from  all  interested  motives 
and  all  improper  influence,  and  still  more  if,  like  the 
English  committees  on  private  bills,  they  could  be  so 
formed  as  to  escape  wholly  from  the  suspicion  of  such 
things,  they  would  be  even  more  valuable  than  they 
are.  America  is  the  only  country  where  questions 
that  do  not  affect  the  whole  community,  and  require 
for  their  decision  a  careful  study  of  details,  are  throwTi 
into  the  vortex  of  legislative  politics.  On  the  con- 
tinent of  Europe  they  are  habitually  regarded  as 
falling  into  the  province  of  administration,  and  de- 


254  "Where  Public  Opinion  Cannot  Apply  [§  112 

cided  by  the  executive,  while  in  England,  though 
treated  as  legislative  matters,  they  are  subjected  to 
a  special  procedure  of  a  wholly  different  character 
from  other  bills.  The  practice  of  public  hearings 
opens  a  road  to  a  system  of  that  kind  which  might 
well  be  carried  farther, 

112.   Public  Hearings  in  Other  States 

All  people  in  Massachusetts,  who  are  well  qualified 
by  experience  to  form  an  opinion  ascribe  much  of 
the  merits  of  the  legislature  to  the  custom  of  public 
hearings.  But  on  this  subject  Professor  Reinsch 
says:  "The  potential  influence  of  committee  hear- 
ings to  bring  to  bear  upon  legislative  action  the 
opinions  and  desires  of  the  public  in  a  truly  demo- 
cratic manner,  has  scarcely  been  realized  outside 
of  the  Commonwealth  of  Massachusetts.  In  that 
state,  committee  hearings  are  a  very  important  part 
of  legislative  action  .  .  .  but  the  General  Court  of 
Massachusetts  is  in  all  respects  nearest  the  people, 
and  most  responsive  of  any  American  legislature  to 
intelligent  public  opinion."  ^  So  far  as  this  last 
remark  is  true,  a  reason  for  it,  as  Professor  Reinsch 
observes,  is  to  be  found  in  the  fact  that  Massa- 
chusetts is  one  of  the  states  whose  capital  is  in 
the  largest  city.  This  has  the  double  advantage 
of  making  a  sojourn  at  the  legislature  attractive 
to  its  members,  and  making  it  easy  for  citizens  to 
attend  committee  hearings.  The  first  advantage 
is  subtle,  though  real,  and  applies  everywhere;  for 
even  the  charm  of  a  seat  in  the  House  of  Commons 

^  American  Legislatures,  p.  174. 


§  \U]     Public  Hearings  in  Other  States       255 

would  be  much  reduced  if  Parliament  sat  at  Not- 
tingham instead  of  London. 

The  second  advantage  is  more  obvious.  To  go  to 
Albany  or  Harrisburg,  or  Springfield  for  a  commit- 
tee hearing  involves  a  day's  journey,  and  the  most 
public-spirited  citizen  cannot  be  expected  to  under- 
take it  often.  But  from  their  residences,  or  places 
of  business,  about  half  the  citizens  of  Massachusetts 
can  reach  the  State  House  in  less  than  an  hour,  and 
perhaps  a  quarter  of  them  in  twenty  minutes;  so 
that  public  opinion  or  special  knowledge  can  be 
brought  to  bear  on  the  legislature  with  a  very  small 
expenditure  of  time  and  effort  on  the  part  of  the 
community. 

One  who  has  made  a  far  less  thorough  study  of 
legislative  action  outside  of  Massachusetts  than 
Professor  Reinsch  must  hesitate  before  questioning 
his  conclusion,  and  yet  it  may  be  suggested  that  he 
goes  too  far  in  speaking  of  the  influence  of  committee 
hearings  as  scarcely  realized  outside  that  common- 
wealth. No  doubt  there  are  other  states  where 
matters  determined  in  Massachusetts  by  committees, 
on  the  evidence  presented  to  them,  are  settled  by  a 
boss  or  a  private  conference  of  political  chiefs;  but 
that  is  by  no  means  true  everywhere,  nor  are  all 
questions  so  disposed  of  anywhere.  No  doubt 
committee  hearings  are  in  more  general  use  in  Boston 
than  in  most  of  the  state  capitals,  yet  extensive 
inquiries  conducted  by  the  writer  seem  to  make  it 
probable  that  the  practice  is  not  wholly  unknown  in 
any  of  our  legislatures,  while  in  many  of  them  public 
hearings  before  committees  are  not  uncommon  and 


^256    Where  Public  Opinion  Cannot  Apply  [§  113 

have  a  distineth'  beneficial  effect.  Their  use  and  the 
extent  of  their  influence  vary,  of  course,  with  the 
nature  of  the  subject,  and  hence  the  answer  one  is 
likely  to  receive  will  differ  with  the  class  of  question 
in  which  the  person  speaking  happens  to  be  interested. 
In  matters  like  education,  which  are  not  closely 
connected  either  with  politics  or  with  private 
interests,  public  hearings  have  the  best  chance  of 
playing  an  important  part;  but  in  many  places  they 
are  by  no  means  confined  to  subjects  of  that  char- 
acter. They  are  probably  growing  in  use  and 
destined  to  gain  in  importance.  In  Wisconsin,  for 
example,  a  deliberate  attempt  is  being  made  to 
encourage  them.  They  are,  indeed,  a  highly  valu- 
able element  in  popular  government ;  and  this  is  the 
more  true  because  with  the  elimination  of  thorough 
discussion  from  our  representative  bodies,  due  partly 
to  the  increase  of  legislative  business,  partly  to  the 
cutting  down  of  time,  and  partly  to  the  large  propor- 
tion of  new  members,  most  of  the  real  work  must  be 
done  through  public  opinion  by  sample  in  the  form 
of  committees,  and  committees  without  public 
hearings  are  cut  off  from  their  best  source  of  light. 

113.    The  Three  Objects  that  Public  Officers  Serve  are 
Often  Combined 

We  have  considered  separately  the  three  functions 
that  public  officers  are  intended  to  fulfil,  and  we  have 
passed  in  review  pure  examples  of  each  of  them;  but 
as  we  saw  at  the  outset  all  three  duties  are  in  prac- 
tice constantly  combined  in  the  same  office.  This 
is  true  to  a  greater  or  less  extent  of  all  the  members 


§  113]     Objects  that  Public  Officers  Serve       257 

of  legislatures  and  elected  councils,  and  of  all 
presidents,  governors,  and  other  potentates  chosen 
by  popular  vote.  Elections  for  any  of  these  positions 
are  partly  an  expression  of  public  opinion  on  certain 
issues  that  have  become  prominent;  partly  a  selec- 
tion of  persons  peculiarly  fitted  by  their  knowl- 
edge or  experience  to  exercise  their  own  judgment; 
and  partly  a  choice  of  persons  to  represent  the 
ordinary  good  sense  of  the  community,  and  bring  to 
bear  on  the  questions  that  arise,  not  expert  knowl- 
edge, but  the  general  qualities  whereby  any  healthy 
public  opinion  is  formed.  On  different  occasions  one 
or  other  of  these  aspects  of  a  political  office  may  be 
given  special  prominence,  but  it  is  rare  that  any  of 
them  is  wholly  absent. 

A  large  part  of  the  work  of  men  in  legislative  or 
executive  positions,  and,  indeed,  of  all  officials  who 
are  not  experts,  consists  in  dealing  with  the  questions 
presented  to  them  as  any  other  sensible  man  might 
do.  That  is  the  reason  why  good  sense  is  usually 
more  important  in  public  posts  than  remarkable 
talent.  In  ordinary  times  it  is  not  essential,  nor 
always  desirable,  that  the  holder  of  a  great  office 
should  have  genius  or  originality,  that  he  should 
possess  the  imagination  required  for  eminence  in 
literature,  art,  science,  invention  or  industrial 
enterprise.  What  is  needed  is  quick  apprehension, 
broad  sympathy,  and  sound  judgment,  for  the  public 
officer  should  be  rather  the  balance-wheel  than  the 
mainspring  of  government.  Genius  and  originality 
often  make  mistakes.  Many  inventors  and  leaders 
in   commercial   ventures,  although  discoverers   of  a 

17 


258   Where  Public  Opinion  Cannot  Apph'  [§  lU 

path  to  future  wealth,  have  died  bankrupt,  because  in 
innovation  there  is  risk.  The  road  of  progress  is 
paved  with  failures  that  have  made  the  way  possible 
for  others,  and  the  risks  which  have  caused  them 
are  quite  justified  in  private  life;  but  it  is  not  right 
to  speculate  with  public  interests.  Innovators  are 
invaluable  to  the  state,  if  they  are  under  control, 
and  the  men  who  control  them  ought  to  represent 
the  general  good  sense  of  the  community. 

The  fact  that  the  different  classes  of  functions  are 
so  frequently  combined,  and  must  inevitably  be  so, 
makes  it  important  to  surround  the  performance  of 
each  with  the  safeguards  appropriate  to  that  function. 
When  a  legislator  or  officer  is  acting  as  a  sample  of 
the  public  he  should  be  placed  in  the  full  light  of 
publicity,  made  to  feel  that  his  duties  have  a  judicial 
character,  and  should  receive  the  kind  of  information 
to  be  derived  from  a  well-conducted  hearing.  Such 
a  hearing  is  quite  different  in  its  object  from  a  cabinet 
council  or  a  business  transaction,  and  nothing  but 
evil  can  come  from  blending  the  forms  of  different 
kinds  of  proceedings  together. 

114.   Selection  of  Different  Kinds  of  Officers 

We  are  in  the  habit  of  speaking  as  if  the  election  of 
public  officers  were  the  easiest  thing  in  the  world. 
It  requires  the  voter  only  to  mark  his  ballot,  and  drop 
it  into  a  box.  Yet  the  value  of  the  vote  depends, 
not  on  the  mechanical  act,  but  on  the  intelligence  of 
the  choice;  and  it  is  sometimes  strange  to  compare 
the  readiness  with  which  the  whole  people  elect  a 
governor  and  the  painful  solicitude  of  the  managers 


§  114]        Selection  of  Different  Officers  259 

of  some  large  concern  in  selecting  a  man  for  an  office 
certainly  not  more  important.  Examples  from  com- 
mercial life  are  now  anathema,  but  there  is  no  harm 
in  observing  how  often  the  trustees  of  a  college  or 
university  search  long  and  anxiously  for  a  president. 
Do  we  not  recognize  enough  the  greater  diflSculty 
of  choosing  good  public  officers  in  some  cases  than 
in  others.'* 

To  revert  for  illustration  to  the  comparison  made 
in  an  earlier  chapter  between  Parliament  and  an 
American  legislature;  in  both  countries  new  ques- 
tions arise  which  the  representative,  guided  neither 
by  public  opinion  nor  by  special  knowledge  of  his  own, 
must  decide  by  the  light  of  ordinary  common  sense, 
questions,  in  short,  that  place  him  in  a  position 
where  he  must  act  as  a  good  sample  of  the  public. 
But  those  cases  arise  with  very  different  frequency 
in  the  two  bodies.  Owing  to  the  exigencies  of  the 
parliamentary  system,  a  member  of  the  House  of 
Commons  almost  always  follows  his  party  leaders  on 
questions  of  a  public  nature,  save  in  some  peculiar 
case  where  the  interests  of  his  constituents  are 
manifestly  opposed.  The  election  of  a  member  of 
Parliament  is,  therefore,  mainly  an  expression  of 
opinion  on  certain  broad  issues,  and  the  choice  of  a 
man  who  will  support  the  leaders  of  one  of  the 
political  parties.  The  voter  does  not  select  those 
leaders.  He  does  not  designate  them  in  a  primary, 
caucus  or  convention,  or  prepare  a  platform  for  them. 
They  are  developed  in  the  warfare  of  the  House,  and 
come  before  him  with  their  issues  formed.  In  short 
the  people  have  the  simplest  of  all  political  decisions 


260   Where  Public  Opinion  Cannot  Apply  [§  114 

to  make,  that  of  choosing  between  two  wholly  framed 
alternatives  by  voting  for  one  or  other  of  the  candi- 
dates for  a  seat  where  personality  is  of  secondary- 
consequence. 

In  America,  where  the  representative  is  far  more 
free  to  act  on  each  question  as  his  judgment  dic- 
tates, the  selection  of  the  man  is  more  important. 
The  machinery  for  nomination  and  for  a  declara- 
tion of  policy,  which  has  given  us  so  much  trouble, 
becomes  very  serious,  for  thereby  the  people  take  in 
reality  a  much  more  onerous  part  in  government  than 
they  do  in  England.  The  selection  of  adequate 
representatives  and  public  officers  is,  therefore,  a 
very  difficult  matter  in  America,  more  difficult  per- 
haps than  anywhere  else  in  the  world,  and  yet  we  mul- 
tiply the  difficulty  with  a  light  heart  by  increasing 
unnecessarily  the  number  of  elective  oflficers,  and 
complain  that  they  are  not  so  good  as  we  are  entitled 
to  have. 

Moreover,  we  do  not  confine  elections  to  those 
kinds  of  oflScers  that  the  people  are  most  likely  to 
choose  wisely.  A  distinction  may  be  roughly  dra^^'n 
between  three  classes  of  public  servants  according 
to  the  functions  they  are  chiefly  intended  to  per- 
form: those  who  are  chosen  to  express  the  opinions 
of  the  people;  those  who  are  appointed  to  use 
their  own  personal  knowledge  or  skill;  and  those 
who  are  intended  to  act  as  fair  samples  of  the 
public  on  the  questions  that  may  be  brought  before 
them.  The  people  can  certainly  choose  a  man  to 
express  the  opinions  they  have  already  formed,  or 
to  act  as  a  sample  of  the  public  on  questions  that  may 


§  114]        Selection  of  Different  Officers  261 

arise,  far  better  than  they  can  select  a  man,  tech- 
nically trained,  to  use  his  own  expert  judgment. 
They  know  their  own  opinion,  and  they  can  easily 
ascertain  whether  a  candidate  for  office  will  express 
it  honestly.  They  recognize  a  fair  sample  of  the 
public,  gifted  with  common  sense,  when  they  see 
him;  but  they  know  little  about  experts.  A  prudent 
President  or  Governor  in  appointing  a  technical 
officer  does  not  ordinarily  rely  on  his  own  impres- 
sions; but  seeks  advice  which  is  not  within  reach  of 
the  public.  The  people  are  not  in  a  position  to 
obtain  or  weigh  such  advice,  and  hence  are  poorly 
qualified  to  choose  the  general  for  an  army,  the  sur- 
geon for  a  city  hospital,  or  a  judge.  The  election  of 
judges  by  popular  vote  would  not,  indeed,  work  so  well 
as  it  does,  were  it  not  for  the  great  influence  of  the 
legal  profession  throughout  American  politics;  and 
every  sensible  man  will  admit  that  to  choose  a  general 
or  a  surgeon  by  popular  vote  would  be  a  grave  mis- 
take. As  Chief  Justice  Ryan  tersely  expressed  it: 
"Where  you  want  skill  you  must  appoint;  where 
you  want  representation,  elect,"  and  that  will  remain 
true  unless  we  are  to  push  to  its  logical  extreme  the 
dogma  of  popular  infallibility. 


CHAPTER   XYll 

EXPERT  ADMINISTRATORS   IX   POPULAR  GO\'ERXMEXT 

A  DISCUSSION  of  the  proper  method  of  appointing 
technical  officers  opens  the  great  subject  of  the 
function  of  experts  in  popular  government.  Presi- 
dents, governors,  and  mayors  cannot  be  experts  in  all 
the  matters  with  which  they  are  called  upon  to  deal, 
nor  as  a  rule  are  they  thoroughly  expert  in  any  of 
them;  and  in  fact  this  is  generally  true  of  officers 
elected  to  administer  public  affairs.  We  cannot, 
therefore,  avoid  the  question  whether  they  do.  or  do 
not,  need  expert  assistance  if  the  government  is  to 
be  efficiently  conducted.  The  problem  is  not  new, 
for  the  world  struggled  with  it  two  thousand  years 
ago.  The  fate  of  institutions  has  sometimes  turned 
upon  it,  and  so  may  the  great  experiment  we  are 
trj'ing  today — that  of  the  permanence  of  democracy 
on  a  large  scale.  Americans  pay  little  heed  to  the 
lessons  taught  by  the  painful  experience  of  other 
lands,  and  Charles  Sumner  expressed  a  common 
sentiment  when  he  remarked  sarcastically  his  thank- 
fulness that  they  knew  no  history  in  Washington. 
Our  people  have  an  horizon  so  limited,  a  knowledge 
of  the  past  so  small,  a  self-confidence  so  sublime,  a 
conviction  that  they  are  altogether  better  than  their 
fathers  so  profound,  that  they  hardly  realize  the 
difficulty  of  their  task.     We  assume  unconsciously, 

262 


Experts  in  Popular  Government        263 

as  a  witty  writer  has  put  it,  that  human  reason  began 
about  thirty  years  ago;  and  yet  a  candid  study  of 
history  shows  that  the  essential  qualities  of  human 
nature  have  not  changed  radically,  that  men  have 
Uttle  more  capacity  or  force  of  character  than  at 
other  favored  epochs.  Some  improvement  in  stand- 
ards has,  no  doubt,  taken  place,  and  certainly  the 
bounds  of  human  sympathy  have  widened  vastly; 
but  there  has  been  no  such  transformation  as  to  jus- 
tify a  confidence  that  the  men  of  the  present  day 
can  accomplish  easily  and  without  sacrifice  what  to 
earlier  generations  was  unattainable. 

We  have  already  observed  that  a  means  of  making 
democracy  on  a  large  scale  possible  in  the  modern 
world,  although  it  had  not  proved  so  in  the  past,  was 
thought  to  have  been  found  in  the  device  of  repre- 
sentation. This  was  supposed  to  enable  a  large 
countrv'  to  govern  itself  as  small  communities  alone 
had  hitherto  succeeded  in  doing.  But  we  have  seen 
also  that  the  faith  in  representative  government  as 
a  universal  means  of  solving  political  problems  has 
markedly  declined  of  late,  and  that  the  conditions 
under  which  it  has  worked  must  be  improved 
or  it  will  not  by  itself  bring  us  to  our  goal.  It  is  well 
then  to  inquire  whether  there  were  not  other  defects 
in  the  older  forms  of  democracy  which  are  still  with 
us,  and  which  a  calmer  judgment,  an  unimpassioned 
study  of  political  phenomena,  may  help  us  to  remove. 
In  doing  so  we  ought  not  to  forget  that  the  centurv' 
during  which  democracy  on  a  large  scale  has  endured 
is  a  brief  span  in  history,  and  offers  no  conclusive 
proof  of  the  deeper  currents  of  human  destiny;  that 


2G4  Where  Public  Opinion  Cannot  Apply   [§  115 

in  seeking  to  solve  the  riddle  of  man's  social  organi- 
zation we  must  take  long  views,  and  not  allow 
ourselves  to  be  overwhelmed  by  the  clamor,  the 
complaints,  and  the  enthusiasms  of  the  moment  in 
which  we  live. 

115.   Lack  of  Experts  in  Athens 

No  profound  knowledge  of  history  is  needed  to 
perceive  that  the  republics  of  the  ancient  world  made 
very  little  use  of  experts  in  the  public  service.  The 
two  of  which  we  know  by  far  the  most  are  those  of 
Athens  and  of  Rome,  and  in  some  important  respects 
their  methods  of  dealing  with  public  office  were 
similar,  since  in  both  the  officers  were  appointed, 
as  a  rule,  for  a  single  year,  and  were  practically  not 
reeligible.  The  theories  of  democracy,  as  then 
understood,  were  carried  farthest  in  Athens,  where 
most  of  the  offices  were  collegiate  and  many  of  them 
were  filled,  not  by  election,  but  by  lot,  every  free 
citizen  being  deemed  fit  to  occupy  any  civic  position 
in  the  state.  Under  these  conditions,  an  official 
could  have  no  expert  knowledge  of  the  work  to  be 
done  in  his  department,  however  familiar  he  might 
be  with  the  discussion  of  political  questions  in  the 
assembly;  nor  could  he  in  the  short  space  of  a  year 
acquire  any  considerable  experience  in  the  man- 
agement of  his  office.  In  short,  the  administration 
was  conducted  by  amateurs.  Nor  were  these  men 
assisted  by  expert  subordinates  or  advisers.  There 
were,  no  doubt,  slaves  in  the  service  of  the  state, 
to  do  the  purely  routine  work  of  keeping  accounts 
and  the  like,  and  sometimes,  at  least,  a  professional 


§  116]  Lack  of  Experts  in  Athens  265 

architect  was  appointed  to  phm  a  piibhc  building; 
but  as  a  rule  all  administrative  work  involving  the 
exercise  of  discretion  was  performed  by  citizens 
holding  office  for  a  year  only,  without  any  aid  from 
experts  or  persons  familiar  by  experience  with  the 
duties  of  the  position.  There  appear  to  have  been 
no  government  engineers  for  constructing  roads,  no 
naval  architects,  no  professional  generals,  no  expert 
financial  officers.  The  collection  and  expenditure  of 
the  revenues,  the  direction  of  a  war,  and  the  fitting 
out  of  the  fleet,  were  intrusted  to  unskilled  men 
selected  in  most  cases  by  lot.  Such  a  system,  as  we 
have  seen,  was  considered  by  the  Greeks  themselves 
essential  to  democracy,  for  it  tended  to  proclaim  and 
preserve  the  equality  of  all  the  citizens.  It  did  not 
work  badly  in  a  simple  community  where  the  various 
branches  of  the  public  service  involved  few  things 
with  which  an  ordinary  citizen  might  not  be  familiar 
in  his  daily  life,  and  of  course  it  worked  well  while  a 
Pericles  directed  the  affairs  of  state  outside  of  public 
office,  as  a  sort  of  glorified  boss.  But  the  system  was 
hardly  equal  to  a  severe  strain,  and  we  may  safely 
assume  that  it  contributed  to  the  downfall  of  Athens 
before  the  blows  of  a  highly  organized  monarchy  of 
the  same  race  under  Philip  of  Maeedon. 

116.   Expert  Administrators  in  Rome 

The  Romans  carried  both  the  theory  and  the  prac- 
tice of  democracy  less  far  than  the  Greeks,  yet  the 
principle  of  rotation  in  office  was  rigidly  applied, 
and  the  result,  very  different  from  that  in  Athens, 
has  a  more  direct  lesson  for  us.     Under  the  republic, 


266  Where  Public  Opinion  Cannot  Apply    [§  116 

the  officials  were  chosen  only  for  a  single  year,  and 
as  a  rule  were  not  reelected.  It  is  true  that  the 
government  was  in  the  hands  of  a  ruling  class,  and 
that  no  one  could  hold  a  higher  magistracy  who  had 
not  previously  filled  the  lower  ones  in  the  official 
ladder,  so  that  the  higher  officers  had  enjoyed  some 
experience  in  public  affairs;  but  no  single  office  was 
held  by  anyone  more  than  one  year,  and  there  was 
nothing  remotely  resembling  a  permanent  civil  ser- 
vice. Every  man  was  quite  new  to  the  administrative 
office  he  might  fill,  and  left  it  before  he  had  time  to 
learn  much  more  than  he  knew  when  he  came  in. 
This  constitution  worked  well  enough  so  long  as  Rome 
was  a  small  Italian  state  with  simple  industries  and 
few  foreign  complications;  but  when  she  acquired 
dominions  beyond  the  seas,  when  the  contact  with 
the  East  destroyed  her  old  traditions  of  discipline, 
when  instead  of  governing  a  small  town  and  an 
agricultural  district,  her  people  were  called  upon  to 
rule  a  huge  metropolis,  to  administer  vast  provinces, 
to  regulate  the  commercial  affairs  and  control  the 
political  destinies  of  the  western  world,  the  system 
broke  down. 

After  the  lack  of  experts  in  the  public  service  began 
to  be  of  serious  consequence  Rome,  unlike  Athens, 
came  into  conflict  with  no  people  at  all  her  match 
in  political  or  militarA'  qualities,  and  the  republic 
was  brought  to  an  end,  not  by  external  forces,  but 
by  internal  weakness  and  constitutional  instability. 
Of  course  there  were  other  causes  contributing  to  its 
downfall;  of  course  it  is  easy  to  point  to  particular 
men  at  whose  hands  the  constitution  suffered  vio- 


§  116]      Expert  Administrators  in  Rome        267 

lence;  of  course  it  is  impossible  to  distinguish  sharply 
between  the  occasion  and  the  underlying  cause; 
but  surely  it  is  abundantly  clear  that  government  by 
a  succession  of  amateurs,  without  expert  assistance, 
had  proved  itself  hopelessly  incapable  of  maintaining 
an  orderly  administration  on  so  gigantic  a  scale. 
The  state  had  outgrown  its  machinery,  and  the 
empire  by  creating  a  new  organization  prolonged 
its  life. 

Augustus  and  his  earlier  successors  had  no  idea  of 
setting  up  a  bureaucracy  to  administer  their  domin- 
ions. In  the  main  they  merely  took  over,  as  each 
exigency  arose  and  without  a  definite  plan,  those 
matters  that  were  in  sore  need  of  attention.  The 
former  transitory  officials  of  the  senatorial  class  being 
unable  to  cope  with  the  great  problems  of  the  day, 
one  duty  after  another  passed  into  the  control  of 
the  head  of  the  state  and  his  personal  subordinates; 
and  it  took  three  centuries  to  complete  the  process. 
Meanwhile  the  administrative  machinery  for  dealing 
with  these  matters  was  being  gradually  developed; 
but  again,  not  on  a  deliberate  systematic  plan,  but 
in  the  earlier  stages,  at  least,  by  adopting  the  means 
nearest  at  hand.  During  the  century  following 
Augustus,  the  Emperors  used  for  this  purpose  to  a 
great  extent  the  freedmen  attached  to  their  own 
households  and  trained  to  conduct  their  private 
affairs  on  a  large  scale;  but  as  time  went  on  these 
were  replaced  by  free  citizens,  drawn  for  the  upper 
grades  of  the  service  from  the  order  of  knights,  and 
thus  a  permanent  civil  service  grew  up,  which  men 
of  ability  entered  young  and  followed  for  life  as  a 


268  Where  Public  Opinion  Cannot  Apply  [§  117 

career.^  It  is  this  administrative  system,  apparently 
derived  in  part  from  the  practice  of  the  Egyptian 
monarchy,  that  produced  and  crystallized  the  forms 
of  Roman  law  and  government.  The  preservation 
of  the  Roman  dominions  for  so  long  a  period,  as  well 
as  the  far  longer  life  of  the  Eastern  Empire,  must 
be  attributed  in  great  part  to  the  adoption  of  the 
imperial  form  of  government  with  its  large  use  of 
trained  expert  officials;  and  to  the  same  source  must 
be  ascribed  also  the  overmastering  influence  of  Roman 
civilization  upon  the  modern  world. 

117.   Experts  in  Monarchies  and  Democracies 

Throughout  the  Middle  Ages,  and  indeed  until  a 
hundred  and  fifty  years  ago,  democracies  were  small, 
or  turbulent  and  ephemeral.  Venice  was,  no  doubt, 
a  powerful  and  prosperous  republic  for  many  centu- 
ries, but,  far  from  being  democratic,  was  an  aristoc- 
racy of  a  restricted  type,  and  furnishes  no  exception 
to  the  general  rule  that  democracies  have  in  the 
past  been  small  or  short-lived.  At  the  close  of 
the  Middle  Ages  the  great  states  of  modern  Europe 
began  to  assume  their  present  form,  and  in  every 
case  they  were  ruled  by  monarchs  who  employed, 
not  oflficials  appointed  for  short  terms  and  replacing 
one  another  by  rotation,  but  men  whom  they  retained 
permanently  and  who  were  skilled  in  the  art  of 
administration.  The  new  monarchies  meant  govern- 
ment by  experts,  and  that  was  one  of  the  chief  secrets 
of  their  efficiency  and  predominance. 

'  Die  Kai.serlichen  Verwaltung.sbeamten  bis  auf  Diocletian.  Otto 
Hirschfeld.    £d  ed.,  1905.    See  especially  the  concluding  chapter. 


§  117]  Experts  in  Monarchies  269 

Now  the  fact  that  monarchies  have  habitually 
employed  permanent  administrators,  while  democ- 
racies have  shown  a  preference  for  rotation  in  office, 
is  not  an  accident.  It  is  a  natural  result  of  the 
different  principles  on  which  the  two  forms  of 
government  are  based.  The  use  of  experts  is  as 
normal  in  a  monarchy  or  an  aristocracy  as  it  is 
foreign  to  the  genius  of  a  democracy.  A  monarch 
tends  to  retain  in  office  the  men  he  has  learned  to 
know  and  trust,  who  have  become  experienced  in 
carrying  on  his  business.  If  he  is  jealous,  irritable, 
or  captious,  he  may  quarrel  with  them  from  time  to 
time,  or  if  something  goes  wrong  he  may  make  a 
scapegoat  of  one  of  them;  but  in  the  long  run  he  saves 
himself  trouble  and  worry  by  keeping  about  him  the 
servants  whom  he  has  found  faithful  and  efficient; 
and  he  does  so  whether  he  is  himself  good  or  bad. 
If  he  is  good,  he  retains  good  men;  if  bad,  men  who 
will  carry  out  his  evil  designs;  but  in  any  case  men 
faithful  to  him.  The  head  of  a  great  industrial 
enterprise  would  not  think  of  changing  his  subordi- 
nates every  year  or  two.  Whether  honest  or  corrupt, 
whether  generous  or  oppressive,  he  wants  under  him 
men  who  have  proved  themselves  efficient  for  his 
purposes;  and  a  monarch  is  in  the  same  position. 
He  keeps  his  servants  so  long  as  he  is  satisfied  with 
them ;  and  if  one  of  his  chief  officers  dies  he  is  inclined 
to  fill  the  place  with  a  man  who  has  made  his  mark  in 
a  lower  post.  His  ministers,  being  permanent,  are 
prone  for  the  same  reason  to  retain  their  own  sub- 
ordinates, promoting  them  to  higher  places  as  they 
show    the    ability,    or    subservience,   required;   and 


270   Where  Public  Opinion  Cannot  Applj'  [§  117 

thus  a  monarchy  tends  to  produce  a  corps  of  expert 
administrators  in  every  department,  its  pubhc  ser- 
vice becoming  a  career  which  a  man  enters  young 
and  follows  through  life.  The  service  is  not  always 
good;  it  may  become  stagnant  or  rigid,  and  its 
members  negligent,  oppressive,  or  corrupt.  There 
have  been  admirable  bureaucracies,  and  there  have 
been  execrable  ones,  but  even  the  worst  of  them  have 
shown  a  certain  durability  derived  from  the  expert 
character  of  their  members.  In  spite  of  the  gravest 
vices,  they  have  given  to  the  governments  they  have 
served  a  permanence  beside  which  the  democracies 
that  existed  on  a  large  scale  until  a  hundred  years 
ago  have  seemed  ephemeral. 

Permanence  in  the  tenure  of  public  office  is,  on 
the  other  hand,  unnatural  to  a  democracy.  The 
habit  of  repeated  reelection  is,  indeed,  occasionally 
found  —  especially  where  a  strong  infusion  of  aris- 
tocratic feeling  persists  under  popular  forms,  as  in 
some  of  the  rural  cantons  of  Switzerland  —  but  in 
general  democracies  tend,  as  in  Athens,  to  frequent 
changes  in  office.  That  is  partly  because  the  people 
are  afraid  of  losing  their  power  or  freedom  under 
permanent  officials.  In  this  connection,  indeed, 
it  is  interesting  to  compare  in  America  the  pop- 
ular distrust  of  permanent  administrators  with  the 
absence,  until  the  last  few  years,  of  any  widespread 
popular  distrust  of  professional  politicians;  a  differ- 
ence largely  due  to  the  fact  that  the  politicians  mix 
with  and  court  the  people,  taking  pains  to  appear 
on  a  level  with  them,  while  the  permanent  official 
stands  apart  and  remote.     A  boss,  it  is  true,  some- 


§  118]        The  Need  of  Experts  Today  271 

times  holds  himself  aloof,  but  at  least  he  distributes 
favors  and  is  regarded  as  a  benign  special  providence. 
Another  reason  for  the  democratic  dislike  of 
permanence  of  tenure  grows  from  an  insistence  upon 
equality,  demonstrated  by  giving  every  man  a  sub- 
stantial chance  to  take  part  in  the  administration 
of  public  affairs.  Men  desire  not  only  to  be  well 
governed,  but  also  to  feel  that  they  are  governing 
themselves,  and  the  readiest  way  of  reaching  this 
result  is  to  throw  the  offices  open  to  all  aspirants. 
We  do  not  need  to  go  back  to  the  ancient  world  to 
learn  a  common  principle  of  human  nature.  We 
can  look  about  us.  Among  our  forefathers,  as  among 
the  Greeks,  rotation  in  office  was  a  corollary  of 
democracy,  and  while  the  word  has  become  obnoxious 
the  practice  has  not  lost  its  attractions.  Rotation 
in  office  is  based  upon  the  same  principle  as  the  use 
of  the  lot  in  Athens,  for  it  purports  to  give  each  man 
an  equal  chance  at  office,  and  to  insure  the  control  of 
public  affairs  by  public  opinion.  It  is,  perhaps,  the 
simplest,  but  not  necessarily  the  sole  or  the  best, 
method  of  securing  that  control,  and  one  may  wisely 
inquire  whether  it  is  not  inconsistent  with  efficiency, 
and  whether  some  more  effective  method  of  attaining 
the  result  cannot  be  found. 

118.   The  Need  of  Experts  Today 

The  first  question,  therefore,  is  whether  experts 
are  as  much  needed  in  modern  governments  as  they 
have  been  in  large  states  in  the  past;  and  the  answer 
must  clearly  be  that  they  are  needed  much  more. 
The  habit  of  frequent  changes  of  officials,   which 


27^2  Where  Public  Opinion  Cannot  Apply  [§  118 

means  administration  by  persons  without  special 
skill  in  the  public  duties  they  undertake,  may  work 
well  enough  in  a  small,  primitive  community,  such 
as  Athens  in  her  earlier  days,  or  Xew  England  a 
century  ago,  or  the  ^Yeste^n  frontier  settlements  at 
a  later  time,  where  the  common  experience  of  ordi- 
nary' men  was  such  as  to  fit  them  to  deal  intelligently 
with  the  plain  questions  that  came  before  the  public 
officer.  It  worked  well  enough  under  the  conditions 
that  enabled  a  private  citizen  to  take  up  a  new  busi- 
ness at  any  time  without  previous  preparation. 
In  short,  it  is  good  under  the  same  conditions,  and 
to  the  extent,  as  government  by  sample,  and  it  is 
good  no  farther. 

Now  in  private  affairs  we  have  reached  a  stage 
where  the  complexity  of  civilization,  the  growth  of 
accurate  knowledge,  the  progress  of  invention,  and 
the  keenness  of  competition  which  renders  a  high 
degree  of  efficiency  alone  profitable,  have  brought 
about  the  specialization  of  occupations.  AYe  no 
longer  believe  in  America  today  that  a  man  who  has 
showTi  himself  fairly  clever  at  something  else,  is 
thereby  qualified  to  manage  a  railroad,  a  factory, 
or  a  bank.  Are  we  better  justified  in  assuming  that 
an  election  by  popular  vote,  or  an  appointment  by 
a  chief  magistrate,  confers,  without  apprenticeship, 
an  immediate  capacity  to  construct  the  roads  and 
bridges,  direct  the  education,  manage  the  finances, 
purify  the  water  supply,  or  dispose  of  the  sewage  of 
a  large  city;  and  this  when  it  is  almost  certain  that 
the  person  selected  will  not  remain  in  office  long 
enough  to  learn  thoroughly  a  business  of  which  he 


§  118]         The  Need  of  Experts  Today  273 

knows  little  or  nothing  at  the  outset?  In  industrial 
enterprise,  in  business  concerns,  the  use  of  experts 
of  all  kinds  is,  indeed,  constantly  increasing.  They 
have  revolutionized  some  industries,  and  are  indis- 
pensable in  many  more.  Nor  do  we  merely  seek  for 
men  who  have  gained  experience  in  practice.  In  one 
profession  after  another  we  have  learned  to  train 
them  carefully  in  the  theory  of  their  work,  taking 
them  young  and  educating  them  for  it  as  a  distinct 
career.  Sixty  years  ago,  for  example,  there  was 
scarcely  a  school  of  applied  science  in  the  country, 
but  now  they  are  everywhere,  and  they  can  hardly 
turn  out  students  fast  enough  to  supply  the  demand. 
They  are  ever  adding  new  departments,  while  our 
universities  are  creating  new  specialized  schools, 
and  thus  adding  to  the  number  of  professions.  We 
are  training  men  today  for  all  services  but  that  of 
the  public. 

To  the  argument  that  the  use  of  expert  knowledge 
in  private  industries  has  been  growing,  and  that  the 
need  thereof  in  the  enlarging  sphere  of  governmental 
action  must  be  growing  also,  it  will  be  answered  that 
popular  education  has  been  greatly  extended,  and 
hence  the  capacity  of  the  people  to  deal  with  public 
questions  is  larger  than  ever  before.  This  is,  of 
course,  an  important  factor  in  the  problem  of  popu- 
lar government.  Elementary  education  is  so  nearly 
universal  and  compulsory  today,  that  illiteracy  is 
fast  disappearing  among  the  voters  everywhere; 
and  we  may  assume  that  as  time  goes  on  the  schools 
will  become  more  efficient  and  thorough,  although 
probably   more   specialized,   than   at  present.     But 

18 


274   Where  Public  Opinion  Cannot  Apply  [§  119 

the  bounds  of  human  knowledge  are  growing  faster 
than  education.  A  Casaubon,  who  had  mastered 
everything  known  in  his  day,  has  long  been  an 
impossibility;  and  with  the  vast  progress  of  research 
in  all  fields,  speciahzation  in  knowledge  is  daily 
becoming  greater  and  greater.  Hence  we  have  every 
reason  to  beheve  that  diffusion  of  information  will  not 
relieve  the  world  of  the  need  of  experts;  but  that, 
on  the  contrary-,  the  more  men  learn  the  more  they 
will  require  the  services  of  those  who  know  the  most 
about  particular  subjects. 

119.   Limited  Use  of  Experts  in  American  Government 

It  will  be  answered  also  that  experts  are  used 
now  for  all  professional  work;  that  only  a  lawyer  is 
made  a  government  attorney  or  corporation  counsel, 
only  a  physician  is  appointed  heahh  officer,  only  an 
engineer  is  employed  to  design  a  steel  bridge,  only 
an  architect  to  plan  a  public  building.  This  is 
true;  and  it  means  that  the  great  professions,  which 
have  secured  general  recognition  in  the  community, 
have  been  strong  enough  to  insist  that  strictly 
professional  work  must  not  be  intrusted  to  men 
who  have  had  no  professional  training  or  experience. 
So  far  as  it  goes  that  is  good;  but  what  do  we  mean 
by  professional  work.^  We  do  not  in  practice  include 
all  work  requiring  special  knowledge  or  experience  in 
order  to  be  well  done,  for  we  apply  the  principle  only 
in  the  case  of  a  few  leading  professions.  We  do  not 
insist  or  demand,  for  example,  that  our  postmasters, 
our  collectors  of  customs,  our  superintendents  of 
streets,  the  administrators  of  our  finances  for  the 


§  119]    Experts  in  American  Government      275 

nation,  state,  or  city,  shall  have  any  familiarity  with 
the  affairs  they  are  to  conduct,  or  any  special  quali- 
fications for  their  duties;  and  yet  these  matters  are 
often  nearly  as  complex,  and  require  nearly  as  much 
technical  knowledge,  as  some  of  the  recognized 
professions.  They  require  quite  as  great  skill  as  many 
positions  in  private  employ  to  which  one  would  not 
think  of  appointing  an  untrained  man.  Are  we  wise 
in  intrusting  such  duties  to  a  periodically  shifting 
body  of  oflBcials  drawn  for  political  motives  from  an 
inexperienced  public?  The  question  is  not  meant  to 
imply  that  the  political  heads  of  departments  ought 
to  be  experts;  for,  as  will  be  shown  later,  we  need  in 
the  public  service  both  expert  and  lay  elements,  and 
the  latter  may  well  take  the  form  of  a  non-profes- 
sional head  to  a  department,  provided  he  has  under 
him  thoroughly  competent,  permanent  experts.  But 
in  many  branches  of  the  public  service,  central  and 
local,  we  have  no  experts  at  all,  no  permanent 
officials  playing  an  important  part  in  the  administra- 
tion; and  even  in  those  matters,  like  legal,  medical, 
or  engineering  work,  where  experts  are  regularly  em- 
ployed, we  rarely  allow  men  to  remain  in  office  long 
enough  to  acquire  that  familiarity  with  their  peculiar 
problems  which  confers  efficiency  and  authority. 

We  are  slowly  making  progress  in  these  ways. 
The  scientific  departments  at  Washington  are  filled 
with  men  of  the  highest  attainments,  whom  we  may 
hope  to  see  retained  in  spite  of  political  changes. 
We  have  made  progress  also  in  civil  service  reform. 
Yet  this  practice,  which  was  derived  from  England, 
was  applied  at  first  only  to  positions  of  the  lower 


276  Where  Public  Opinion  Cannot  Apply  [§  119 

grade,  where  the  work  is  mainly  of  a  clerical  or 
mechanical  character.  A  vast  benefit  has  been 
gained  by  taking  these  places  out  of  the  field  of 
political  patronage  and  party  spoils;  but  the  system 
has  been  applied  very  little  to  posts  requiring  the 
exercise  of  considerable  administrative  discretion. 
We  cannot  estimate  what  we  have  suffered  in  our 
great  public  departments,  like  the  Treasury  and  the 
Post  Office,  from  the  fact  that  we  have  not  had  per- 
manent under-secretaries,  thoroughly  familiar  with 
the  business  and  its  needs,  and  striving  through  a 
long  period  of  years  to  improve  the  service.  No 
cabinet  officer  holding  his  post  for  a  single  adminis- 
tration, or  less,  can  possibly  supply  that  want.  It 
may  be  noted  also  that  the  United  States  is  the 
only  great  nation  with  a  popular  government  today 
which  has  not  permanent  officers  of  that  kind,  and 
it  is  they  who  keep  the  machinery  of  government 
elsewhere  in  efficient  working  order. 

If  democracy  is  to  be  conducted  with  the  efficiency 
needed  in  a  complex  modern  society  it  must  over- 
come its  prejudice  against  permanent  expert  officials 
as  undemocratic.  It  might  as  well  be  alleged  that 
skilled  engineers  and  modern  inventions  were  un- 
democratic in  war;  that  a  true  republic  ought  to 
go  into  battle  with  bows  and  arrows  against  machine 
guns  worked  by  trained  soldiers.  In  fact,  the 
disadvantage  at  which  our  cities  fight  with  great 
public  service  corporations  is  largely  due  to  the 
difference  in  the  calibre  of  the  officials  employed. 
What  chance,  for  example,  has  a  city  represented 
by  a  solicitor,   who    is    perhaps    changed  at  every 


§  119]    Experts  in  American  Government      277 

election,  and  is  paid  a  small  salary,  against  a  great 
corporation  which  retains  the  best  legal  talent  and 
pays  for  it  many  times  as  much?  And  what  is 
true  in  a  legal  contest  is  true  also  of  comparative 
efficiency  in  all  directions.  A  democracy,  like  every 
other  community,  needs  the  best  tools  that  it  can 
find,  and  the  expert  of  high  grade  is  the  best  living 
tool  of  modern  civilization. 


CHAPTER  XVIII 

EXPERTS  IX   MUNICIPAL  GOVERNMENT 

120.    Cities  in  America  are  of  Recent  Growth 

The  defects  of  American  methods  are  most 
obvious  in  municipal  government,  for  our  failure 
there  to  attain  anything  approaching  our  ideal  of 
democracy  is  beyond  question.  Future  historians 
will  have  no  difficulty  in  assigning  a  cause  for 
American  shortcomings  in  this  quarter.  They  will 
point  out  that  in  Europe  cities  existed  before  the 
dawn  of  history;  that  the  institutions  of  the  Roman 
world  developed  in  the  main  out  of  urban  conditions, 
and  were  always  deeply  tinged  with  municipal 
ideas.  They  will  note  that  in  the  Middle  Ages, 
when  the  national  organization  was  essentially 
feudal  and  rural,  the  cities  had  a  vitality  of  their 
own  and  presented  the  nearest  approach  on  a  con- 
siderable scale  to  self-government.  They  will  ob- 
serve, in  short,  that  urban  administration  is  by  no 
means  a  new  thing  in  modern  Europe.  On  the 
other  hand,  they  will  perceive  that  local  government 
in  America  was  at  the  outset  almost  entirely  rural 
in  character,  and  long  continued  to  be  mainly 
adapted  to  rural  needs.  The  result  is  that  while 
the  problem  of  rural  administration  has  given  rise 
in  the  last  half  century  to  quite  as  serious  consider- 

278 


§  l^O]    Cities  in  America  of  Recent  Growth    279 

ation  in  Europe  as  the  management  of  cities,  this 
has  been  very  far  from  the  case  in  the  United  States, 
where  local  government,  outside  of  the  large  towns, 
has  followed  a  course  so  smooth  that  until  scholars 
undertook  a  study  of  the  subject,  few  men  had  any 
clear  conception  of  rural  institutions  beyond  their 
own  section  of  the  country.  The  very  absence  of 
general  discussion  of  the  subject  shows  that,  while 
there  is  a  great  diversity  in  the  rural  organization 
in  different  parts  of  the  nation,  each  system  has 
grown  normally  from  prevailing  conditions,  and  is 
fairly  well  suited  to  local  needs;  whereas  in  the  case 
of  municipal  government,  where  conscious  imitation 
has  been  far  more  common,  discontent  is  well-nigh 
universal  throughout  the  land. 

In  the  charters  of  American  cities  the  separation 
of  executive  and  legislative  organs,  and  the  division 
of  the  latter  into  two  branches,  was  copied  from 
the  state  and  national  governments,  although  these 
principles  had  no  proper  application,  because  a  city 
government  is  essentially  an  administrative,  not  a 
legislative,  concern.  Moreover,  wide  as  the  diver- 
gence is  today  between  the  forms  of  rural  and  urban 
government  in  America,  some  principles  appear  to 
have  been  carried  over  from  one  to  the  other  without 
regard  to  their  fitness.  The  needs  of  a  rural  com- 
munity are  comparatively  simple,  and  are  readily 
understood  by  any  intelligent  man.  This  was  par- 
ticularly true  half  a  century  ago.  The  care  of  the 
roads  and  of  elementary  schools,  the  assessment 
of  taxes  on  farms  and  live  stock,  the  impounding  of 
stray  cattle,  were  matters  within  the  knowledge  of 


280    Where  Public  Opinion  Cannot  Apply  [§  121 

everyone,  and  could  be  managed  well  enough  by 
farmers  of  good  sense  chosen  by  their  neighbors  for 
the  purpose.  No  special  training  was  needed,  no 
corps  of  experts;  and  rotation  in  office,  if  not  too 
rapid,  did  not  seriously  interfere  with  efficiency. 
But  such  a  custom  is  quite  out  of  place  in  the 
administration  of  a  large  modern  city,  complicated 
as  it  must  be  by  a  variety  of  public  services,  most 
of  which  use  the  results  of  recent  scientific  discovery 
and  mechanical  invention.  The  problems  arising 
in  the  supply  of  water,  the  disposal  of  sewage,  the 
maintenance  of  streets  and  bridges  with  their 
numberless  uses  for  wires  and  pipes  as  well  as  for 
travel,  the  provision  for  rapid  transit,  the  elaborate 
system  of  public  education,  and  the  treatment  of 
disease,  pauperism,  and  crime,  are  not  matters  with 
which  even  the  most  intelligent  citizen  is  made 
familiar  in  the  pursuit  of  his  ordinary  vocation. 
They  can  be  mastered  only  by  special  study  or  long 
experience,  and  they  can  be  dealt  with  efficiently 
only  by  persons  who  have  mastered  them. 

121.   The  Lesson  of  European  Cities 

It  is  generally  admitted  that  our  large  cities  are 
less  well  governed  than  those  of  Europe,  and  many 
wise  men  believe  that  we  can  learn  something  from 
their  longer  experience.  But  transplanted  political 
institutions  are  likely  to  be  barren  unless  the  roots 
are  carried  with  them.  There  are  said  to  be  monkeys 
in  Africa  so  imitative  that  they  copy  faithfully  the 
huts  of  men,  and  then  live  on  the  outside  of  them 
instead  of  the  inside.     Political  imitation  is  not  free 


§  121]      The  Lesson  of  European  Cities        281 

from  this  danger  of  copying  the  obvious,  while 
faihng  to  perceive  the  essential,  in  the  working  of 
a  foreign  government.  Now  the  vital  difference 
between  American  and  European  cities,  more  funda- 
mental than  any  outward  form  of  organization,  is 
the  fact  that  municipal  administration  here  is  usually 
conducted  by  inexpert  temporary  oiEcers,  whereas 
in  Europe  it  is  virtually  in  the  hands  of  permanent 
experts,  controlled  to  a  greater  or  less  extent,  but 
never  suppressed,  by  elected  councils. 

In  Germany,  a  country  where  the  bureaucracy 
does  not  seek  shelter  from  the  public  gaze,  the 
influence  of  expert  officials  in  municipal  government 
is  self-evident.  There  is  an  elective  city  council, 
and  the  committees  to  which  the  various  branches 
of  the  administration  are  intrusted  contain  unpro- 
fessional members;  but  the  chief  magistrate  of  the 
city,  the  burgomaster,  is  strictly  a  permanent  pro- 
fessional administrator,  and  the  business  of  the 
city  is  in  the  main  conducted  by  him  and  by  the 
other  permanent  officials  for  whom  municipal  work 
is  a  life-long  career.  In  France  and  England  the 
authority  of  the  permanent  officials  is  less  apparent 
and  one  must  look  beneath  the  surface  to  see  it. 
The  statutes  are,  indeed,  almost  silent  about  their 
qualifications,  their  tenure,  and  their  duties,  but  in 
practice  their  influence  is  little  less  powerful  because 
concealed.^  In  England  the  council  and  its  com- 
mittees purport  to  do  everything.     Yet  by  working 

^  For  the  influence  of  the  permanent  oflBcials  see  Professor  W.  B. 
Munro's  The  Government  of  European  Cities,  and  for  the  English 
cities  see  also  the  writer's  Government  of  England,  chap.  xl. 


28*2   Where  Public  Opinion  Cannot  Apply  [§  1-22 

through  these  committees  and  their  chairmen,  the 
town  clerk,  the  borough  surveyor,  the  tramway 
manager,  the  engineers  of  the  water  and  gas  works, 
and  their  colleagues  practically  carrj'  on  the  adminis- 
tration of  the  city;  and  in  general  it  may  be  said 
that  the  excellence  of  the  service  is  roughly  in  pro- 
portion to  the  strength  of  their  influence.  As  in 
evers'  other  part  of  the  British  government,  un- 
written conventions  are  more  powerful  than  formal 
organization,  and  while  the  forms  are  carefully 
observed  and  even  paraded,  the  real  forces  work 
unseen  in  the  background.  For  this  reason  observers 
often  discover  the  action  of  the  permanent  officials 
in  the  government  of  an  English  city  today  as  little 
as  Montesquieu  perceived  the  effect  of  the  cabinet 
in  restricting  the  personal  authority  of  the  King. 
Even  the  British  public  servant  does  not  talk  of  it, 
and  perhaps  does  not  think  much  about  it,  until  con- 
fronted by  a  system  in  which  it  is  lacking,  and  then 
the  contrast  strikes  him  forcibly.  Mr.  Dalrymple, 
the  manager  of  the  Glasgow  tramways,  reported 
to  the  mayor  of  Chicago  that  it  was  hopeless  for 
the  city  to  think  of  operating  the  street  railroads  so 
long  as  the  officials  were  appointed  for  short  terms 
from  political  motives. 

122.   The  Model  Charter  Discourages  Experts 

Until  recently  our  municipal  reformers  have  not 
appreciated  the  importance  of  this  matter.  They 
have  fixed  their  attention  mainly  upon  devices  that 
would  tend  to  promote  the  selection  of  good  citizens 
for    public   office,    and   have   not   perceived   clearly 


§  122]    Model  Charter  Discourages  Experts    283 

enough  that  the  best  elective  officers  are  in  the  long 
run  as  helpless  without  good  permanent  adminis- 
trators as  the  latter  are  with  a  bad  mayor  and  council. 
The  failure  to  grasp  this  point  is  evident  from  the 
model  city  charter  prepared  by  the  National  Munici- 
pal League  in  1899.  Read  in  the  light  of  reports 
which  explain  it,  that  plan  was  certainly  intended 
to  encourage  permanence  of  tenure  by  the  heads 
of  departments^;  and  yet  under  the  arrangement 
proposed,  they  were  highly  unlikely  to  be  men  who 
devoted  their  lives  to  administrative  service  as  a 
career.  They  could  be  removed,  it  is  true,  only 
with  a  statement  setting  forth  the  reasons  therefor, 
which  must  not  be  their  political  opinions;  but 
everyone  knows  that  such  a  provision  does  not 
prevent  removal  for  political  reasons  where  the 
mayor  has  unrestricted  power  to  appoint  the  suc- 
cessor. What  sort  of  a  position  were  they  intended 
to  occupy?  In  a  small  city  it  is  conceivable,  though 
unlikely,  that  the  mayor  might  be  the  sole  executive 
officer  who  took  part  in  politics,  who  held  by  an 
uncertain  tenure,  and  that  he  should  supervise  a 
corps  of  permanent  heads  of  departments.  But  in 
a  large  city,  this  would  be  beyond  his  powers,  and 
although  there  have  been  occasional  cases  of  heads 
of  departments  in  our  large  cities  who  have  held 
office  continuously  for  long  periods  through  changes 
of  administration,  such  cases  have,  for  obvious 
reasons,  been  extremely  rare.  It  is  not  impossible 
for  a  mayor  to  have  a  cabinet  of  non-professional, 

^  A  Municipal  Program,  adopted  by  the  National  Municipal  League 
Nov.  17,  1899,  pp.  80,  82. 


284   Where  Public  Opinion  Cannot  Apply  [§  122 

temporary  lieutenants  each  of  whom  superintends 
one  or  more  permanent  officials  in  charge  of  depart- 
ments as  the  English  cabinet  ministers  superintend 
their  permanent  under-secretaries.  In  such  a  sys- 
tem, however,  it  is  essential  to  distinguish  clearly 
the  positions  of  the  layman  and  the  expert;  not  to 
prescribe  their  duties  minutely  by  statute,  for  that 
cannot  be  done,  but  to  make  the  distinction  itself 
obvious,  to  make  it  clear,  by  the  absence  of  a  sub- 
stantial salary  or  otherwise,  that  the  temporary  or 
political  chief  is  not  to  administer  the  department 
himself,  but  merely  to  see  that  it  is  properly  ad- 
ministered and  to  keep  it  in  touch  with  public 
opinion.  Now  the  model  charter  did  not  do  this. 
It  apparently  assumed  that  the  head  of  a  depart- 
ment was  to  be  its  real  administrative  officer. 
Under  these  conditions  it  would  probably  not  be 
easy,  after  the  first  flush  of  the  reform  movement 
had  passed,  to  find  either  experts  or  laymen  com- 
petent and  willing  to  fill  the  position.  Experts  of 
high  grade  would  not  be  anxious  to  serve  unless 
they  had  reason  to  suppose  that  they  would  remain 
during  good  behavior;  and  citizens  of  marked  execu- 
tive capacity  would  make  a  great  sacrifice  in  giving 
up  their  regular  occupations  and  devoting  their 
whole  time  to  public  work  for  an  indefinite  period. 
Professor  Goodnow,  one  of  the  authors  of  the  model 
charter,  has  himself  pointed  out  that  heads  of  city 
departments  are  likely  to  be  recruited  too  frequently 
from  professional  politicians  rather  than  professional 
administrators  or  men  of  i)roved  executive  talent.^ 

^  City  Government  in  the  United  States,  p.  191  ct  seq. 


§  123]    City  Government  by  Commission      285 

He  has  treated  this  subject  in  a  very  interesting 
way,  and  suggests  in  the  passage  already  cited  that 
only  by  means  of  boards  of  commissioners  can 
permanence  of  tenure  and  popular  non-professional 
supervision  be  secured;  that  single-headed  depart- 
ments will  fall  into  the  hands  either  of  an  official 
bureaucracy,  or  of  men  who  make  a  living  out  of 
politics  and  from  lack  of  adequate  training  are 
often  not  competent  to  fill  these  oflfices.  In  several 
notable  instances,  boards  of  commissioners,  usually 
unpaid,  but  aided  by  paid  permanent  experts,  have 
certainly  succeeded  in  combining  the  two  elements  in 
a  highly  satisfactory  way;  although  it  may  be 
doubted  whether  Professor  Goodnow  is  right  in 
thinking  this  the  only  means  to  the  end. 

123.     City  Government  by  Commission 

One  of  the  chief  merits  of  the  new  plan  of  placing 
the  whole  city  government  in  the  hands  of  a  com- 
mission is  the  opportunity  it  affords  of  maintaining 
a  corps  of  permanent  administrators  working  under 
the  supervision  of  the  members  of  a  board;  for  an 
elected  commission  is  well  adapted  to  the  purpose, 
and  its  operation  in  this  way  would  not  interfere 
in  the  least  with  the  other  merits  rightly  claimed 
for  it.^     That,  indeed,  has  been  the  course  actually 

^  Mr.  Ford  H.  MacGregor,  in  his  City  Government  by  Commission, 
pp.  25-26  lays  down  four  essential  features  of  the  plan.  First,  a  con- 
centration of  all  power  and  responsibility  in  a  small  body,  instead  of 
dividing  it  between  an  executive  and  a  legislative  branch.  Second,  elec- 
tion at  large  and  not  by  wards.  Third,  the  members  of  the  commission 
the  only  elective  officers  of  the  city,  with  power  to  appoint  all  subordinate 
administrative  officials.  Fourth,  the  power  to  remove  all  such  officials 
at  will.     None  of  these  features  is  in  the  least  inconsistent  with  the 


286  Where  Public  Opinion  Cannot  Apply    [§  123 

pursued  in  Galveston,  where  the  plan  of  government 
by  commission  had  its  origin  and  where  its  benefits 
have  been  most  marked.  The  mayor  receives  a 
salary  of  $2,000  and  is  required  by  the  charter  to 
devote  six  hours  a  day  to  city  work,  but  no  such 
provision  is  made  in  the  case  of  the  other  com- 
missioners who  are  paid  only  $1,"200  and  are  said  to 
give  on  the  average  two  hours  a  day.  They  do  not, 
we  are  told,  undertake  the  actual  management  of 
the  routine  in  their  departments,  which  is  done 
by  the  superintendents  under  them.  They  simply 
ad\'ise  and  direct,  and  thus  men  prominent  in  active 
business  have  been  able  and  willing  to  serve  the 
city  as  members  of  the  commission.^ 

But  in  the  later  charters  that  excellent  principle 
has  not  usually  been  followed.  A  feeling  arose 
that  the  commissioners  ought  to  be  the  actual 
administrators  of  their  departments;  and  hence  in 
Houston,  the  second  city  to  adopt  the  plan,  their 
salaries  were  doubled  and  they  were  expressly 
required  to  devote  their  whole  time  to  the  city.- 
This  idea  has  prevailed  generally,  and  in  most  of 
the  cities  which  have  adopted  government  by 
commission,  substantial  salaries  are  paid  to  its 
members,  intended  apparently  to  be  large  enough 
to  compensate  them  for  their  whole  time.  A  few 
charters,  indeed,  such  as  those  of  Lynn,  Massachu- 

existence  of  permanent  expert  officials  in  charge  of  departments  which 
are  supervised  but  not  directly  administered  by  the  members  of  the 
commission.  In  fact  all  these  features,  except  the  election  at  large, 
exist  in  substance  in  the  English  cities  where  the  administration  by 
permanent  officials  prevails. 

'  MacGregor,  op.  cit.,  pp.  38-39.  »  Ibid.,  pp.  43-44. 


§  12:5]    City  Government  by  Commission      287 

setts,  and  Baker,  Oregon,  go  so  far  as  to  provide  that 
the  commissioners  shall  be  specifically  elected  by  the 
people  to  take  charge  of  particular  departments. 

Now  election  by  popular  vote  is  a  very  poor 
way  of  selecting  expert  administrators,  because 
however  good  judges  the  people  at  large  may  be 
of  a  man's  general  intellectual  and  moral  capacity, 
they  have  neither  the  means  nor  the  leisure  for  the 
careful  scrutiny  needed  to  estimate  his  professional 
qualifications.  An  appointing  body,  if  it  does  its 
duty,  examines  more  evidence  and  considers  more 
candidates  before  making  a  selection  than  the  public 
can  possibly  do,  and  the  best  experts  are  highly 
unlikely  to  be  willing  to  undertake  a  campaign  to 
obtain  the  place. ^  Moreover,  if  expert  adminis- 
trators could  be  chosen  in  this  way,  they  could  not 
be  permanent,  for  that  is  in  its  nature  inconsistent 
with  representing  a  fluctuating  public  opinion  as 
expressed  in  recurrent  elections.  Nor  is  it  practi- 
cable to  have  expert  administrators  of  high  grade 
under  commissioners  chosen  for  the  purpose  of 
administering  the  departments  directly  and  paid 
full  salaries  for  so  doing.  It  would  be  playing 
false  to  the  people  by  taking  pay  for  work  not  done, 
even  if  the  double  charge  of  full  salaries  to  both 
commissioner  and  administrator  were  not  prohibi- 
tive. Considerable  salaries  would,  indeed,  actually 
tend  to  eliminate  men  of  large  experience  in  affairs 
from  the  commission.     A  sense  of  civic  duty  will 

^  Mr.  MacGregor  {City  Government  by  Commission,  p.  49)  remarks, 
"  It  is  probably  now  generally  recognized  that  it  is  easier  to  secure  pro- 
fessional and  technical  men  by  appointment  than  by  popular  election." 


288  AVhere  Public  Opinion  Cannot  Apply  [§  123 

induce  many  such  men  to  devote  their  spare  time 
to  public  affairs,  but  if  they  are  expected  to  give 
up  ever^'thing  else  they  cannot  afford  it.  The 
bigger  the  man,  the  more  he  earns  in  his  private 
occupation,  and  the  less  adequate  the  compensation 
for  his  whole  time;  whereas  a  salary  which  involves 
a  hea\y  sacrifice  for  him  is  very  attractive  to  a 
smaller  man. 

City  government  by  commission  has  not  yet  been 
tried  long  enough  to  warrant  a  decisive  estimate  of 
its  value.  Every  new  plan  works  well  for  a  time, 
because  the  movement  for  reform  from  which  it 
springs  brings  good  men  to  the  front  and  places 
power  in  their  hands.  The  real  test  comes  in  later 
years,  when  the  momentum  is  exhausted,  and  the 
moral  enthusiasm  of  the  dawn  has  faded  into  the 
light  of  common  day.  The  merit  of  the  commission 
plan  will  probably  depend  upon  the  capacity  it 
develops  for  providing  expert  administration;  and 
this  brings  us  to  the  delicate  question  of  the  proper 
relation  between  the  expert  who  carries  on  the 
public  service  and  the  representative  of  the  public 
under  whom  he  serves.^ 

1  One  of  the  few  direct  encouragements  in  any  American  city  charter 
to  the  use  of  experts  in  municipal  government  is  to  be  found  in  the  new 
charter  of  Boston,  which  provides  that  an  appointment  by  the  mayor 
shall  not  take  effect  unless  the  civil  service  commission  of  the  state 
certifies  that  the  appointee  is  an  expert  or  a  citizen  qualified  by  his  char- 
acter and  experience  for  the  position.  This  is  not  a  very  long  step, 
and  makes  no  provision  for  the  proper  use  of  experts;  but  it  was  designed, 
by  drawing  attention  to  the  need  of  them,  to  promote  their  selection, 
and  it  has  not  been  without  effect. 

A  verj'  incisive  discussion  of  the  function  of  experts  in  municipal 
government  is  contained  in  the  Baldwin  Prize  Essay  for  1912  by  Arthur 
Dexter  Brigham. 


CHAPTER  XIX 

CONTROL  AND  RECRUITING  OF  EXPERTS 

Napoleon  was  of  opinion  that  as  law  is  a  science, 
based  on  eternal  principles  of  justice,  the  laws  of 
a  nation  ought  to  be  made  by  a  body  of  scientific 
jurists,  and  hence  that  for  this  purpose  a  representa- 
tive assembly  was  out  of  place.  He  did  not  see  that 
the  principles  of  justice  depend  upon  the  conditions 
of  the  existing  civilization,  and  it  is  to  give  these 
expression  that  a  representative  assembly  exists. 
Our  danger  lies  in  an  opposite  direction.  A  democ- 
racy in  giving  effect  to  the  popular  will  is  liable 
to  forget  that  running  through  all  civilization  there 
are  eternal  principles  which  cannot  be  violated  with 
impunity.  In  fact  there  is  a  constant  need  of  coop- 
eration and  compromise  between  public  opinion  and 
expert  knowledge. 

124.   Cause  of  the  Distrust  of  Experts 

The  American  people  distrust  experts  in  public 
life  for  the  same  reason  that  the  Athenians  avoided 
officers  chosen  for  long  terms.  They  do  not  see 
how  such  men  can  be  kept  in  touch  with  popular 
thought,  and  made  amenable  to  public  opinion. 
They  dread  bureaucracies  like  those  created  by 
monarchy  in  continental  Europe;  and  of  the  English 
system  of  permanent  officials  under  the  control  of 

19  289 


290   AYhere  Public  Opinion  Cannot  Apply  [§  124 

representatives  of  the  people  they  are  unaware 
because  from  its  nature  it  conceals  itself.  The 
distrust  is  well  founded  to  this  extent,  that  if  a 
modern  popular  government  needs  expert  adminis- 
trators, it  must  also  take  care  that  they  do  not 
strangle  it  or  thwart  its  wishes.  Clearly  the  ordi- 
nary methods  of  keeping  representatives  in  contact 
with  public  opinion,  such  as  rotation  in  oflfice  and 
the  prospect  of  a  new  election,  or,  in  the  case  of 
appointed  political  officers,  a  change  of  incumbents 
following  a  change  of  party,  are  inapplicable,  because 
they  are  inconsistent  with  permanence  of  tenure 
and  expert  service.  Nor  are  they  always  effective 
in  preventing  the  evils  commonly  attributed  to 
bureaucracy.  Do  we  not  know  that  by  reason  of 
the  inexperience  of  our  removable  officials  the  United 
States  government  is  one  of  the  worst  debtors,  one 
of  the  most  uncomfortable  concerns  with  which  to 
do  business,  of  all  the  well-meaning  institutions  in 
the  world. ^  Have  we  not  all  groaned  at  its  grievous 
red  tape.^  The  fact  is  that  an  official  who  is  new  to 
his  work,  and  does  not  feel  secure  in  his  position, 
finds  his  chief  safety  in  making  no  departure  from 
the  established  precedents  of  the  office.  Whatever 
the  perils  may  be  in  countries  which  have  inherited 
a  self-sufficient  bureaucracy  from  a  monarchical 
past,  there  would  be  little  danger  here  that  permanent 
officials  properly  supervised  by  non-professionals 
would  be  more  seriously  out  of  touch  with  public 
sentiment  than  temporary  officials  supervised  by 
professional  politicians. 

The  distrust  of  permanent  experts  has  no  rational 


§  125]     Relation  of  Experts  and  Laymen      291 

foundation  if  they  can  be  kept  in  touch  with  pubHc 
opinion  through  the  control  exerted  over  them  by 
representatives  of  the  people;  and  the  constant 
practice  in  England  shows  that  this  is  not  in  fact 
difficult,  provided  the  proper  relation  between  these 
two  classes  of  officials  is  clearly  understood  and 
observed.  But  that  is  precisely  the  point  on  which 
at  present  we  need  to  be  educated. 

125.   Ignorance  of  the  Relation  of  Experts  and  Laymen 

Unfortunately,  we  often  find  in  America,  even 
among  men  with  a  wide  experience  in  affairs,  a 
strange  ignorance  of  the  relation  which  ought  to 
exist  between  experts  and  the  persons  to  whom  they 
are  responsible.  There  are  many  charitable  insti- 
tutions, for  example,  in  which  the  paid  adminis- 
trative head  is  not  present  at  the  meetings  of  the 
board  of  trustees;  and  one  hears  the  practice  de- 
fended on  the  ground  that  it  might  be  awkward 
to  discuss  his  conduct  if  he  were  there  —  as  if  his 
work  could  be  properly  discussed  except  in  his 
presence.  Can  anyone  conceive  of  a  successful 
railroad  where  the  president  was  regularly  excluded 
from  the  board  of  directors.^  No  large  or  difficult 
enterprise  can  prosper  without  a  permanent  adminis- 
trative manager,  and  it  is  his  function  not  only  to 
carry  out  the  policy  laid  down  by  his  directors,  but 
also  to  give  them  his  advice,  to  suggest  to  them 
improvements,  to  convince  them  of  the  soundness 
of  his  views  if  he  can;  and  this  he  is  not  in  a  posi- 
tion to  do  unless  he  appears  in  person  and  takes 
an  active  part  in  their  debates. 


29'-2  Where  Public  Opinion  Cannot  Apply  [§  125 

Even  in  cases,  therefore,  where  experts  are 
employed,  it  is  not  uncommon  to  commit  the 
blunder  of  not  giving  them  a  chance  to  exert  a 
proper  influence.  An  error  of  the  oj)posite  char- 
acter is  often  made  by  placing  experts  in  positions 
which  they  ought  not  to  fill.  When  our  govern- 
ment undertook  the  construction  of  the  Panama 
Canal  the  President,  against  his  own  better  judg- 
ment, appointed  engineers  upon  the  commission  to 
supervise  the  engineer  in  charge  of  the  work.^ 
Shrewd  observers  prophesied  at  the  time  that 
trouble  would  ensue,  and  before  long  the  commis- 
sioners were  changed.  Now,  it  is  a  fundamental 
principle  that  an  expert  ought  not  to  be  set  to 
supervise  another  expert  in  the  same  line  —  unless 
as  his  superior  officer.  An  expert  on  a  board  of 
directors  is  in  danger  of  relying  too  much  upon  his 
own  technical  knowledge,  instead  of  being  guided 
by  the  closer  information  of  the  expert  in  charge 
of  the  work,  and  a  paralyzing  clash  of  opinions  is 
likely  to  result.  There  are,  of  course,  instances 
where  any  of  these  elementary  rules  can  be  violated 
with  impunity  on  account  of  the  character  of  the 
persons  concerned.  Some  professional  men  have 
a  sense  of  their  duties  so  delicate  that  on  a  board 
of  directors  they  avoid  bringing  their  opinions  on 
technical  matters  into  conflict  with  those  of  their 
paid  experts,  but  such  men  are  rare,  and  the  fact 
that  they  are  occasionally  found  does  not  invalidate 
the  general  principle. 

1  Francis  E.  Lcupp,  Atlantic  Monthly,  June,  1912,  p.  847. 


§  126]     Examples  of  the  Proper  Relation      293 

126.  Examples  of  the  Proper  Relation 

These  examples  have  been  mentioned  to  show 
that,  although  our  people  may  understand  the  use 
of  experts  in  their  own  business,  they  are  often 
unaware  of  the  primary  rules  of  the  art  in  affairs 
outside  of  their  daily  experience.  In  our  great 
private  industries  and  educational  institutions  the 
true  relations  between  experts  and  laymen  have 
been  worked  out  and  applied.  The  president  of  a 
railroad  and  his  subordinates  are  railroad  men  by 
profession,  skilled  experts,  and  if  they  were  not, 
the  road  would  not  be  efficiently,  progressively,  or 
even  safely,  conducted;  but  the  board  of  directors 
is  composed  of  bankers,  merchants,  and  other  men 
of  general  business  experience,  who  make  no  pretence 
to  the  technical  knowledge  required  to  manage  the 
road.  In  fact  they  represent  the  business  public  — 
not  by  election,  but  by  sample  —  and  so  far  as  the 
sample  is  not  a  fair  one,  and  therefore  the  directors 
do  not  faithfully  represent  the  business  public,  that 
public,  and  ultimately  the  railroad  itself,  is  sure  to 
suffer.  In  the  same  way,  the  presidents  of  colleges 
are  experts,  and  most  certainly  the  faculties  are;  but 
for  boards  of  trustees  they  want,  not  professional 
educators,  but  broad-minded  men  of  the  world  with 
scholarly  sympathies. 

In  public  office  we  are  constantly  confusing  these 
relations.  We  hear  people  complain,  for  example, 
that  some  candidate  for  the  school  board  is  not  an 
expert  in  education,  although  the  object  of  super- 
vision and  control  by  the  board  is  not  to  add  to 


294  Where  Public  Opinion  Cannot  Apply    [§  126 

the  technical  knowledge  of  the  trained  superin- 
tendent, but  to  supply  the  quahties  which  he  lacks 
—  the  close  touch  with  the  popular  point  of  view, 
and  the  sense  of  proportion  that  comes  therewith. 
In  some  directions  we  have  learned  much  within  a 
generation,  and  in  one  service,  that  of  education, 
we  have  seen  a  marked  change  in  the  attitude  of 
the  people  toward  their  expert  officials.  To  take 
an  ilhistration  from  a  single  city,  a  score  of  years 
ago  Boston  had,  indeed,  a  superintendent  of  schools 
who  had  been  in  office  many  years,  but  he  was 
sufifered  to  take  little  part  in  their  management. 
He  was  not  present  at  the  meetings  of  the  school 
board,  and  the  most  important  of  all  functions,  the 
selection  of  teachers,  was  performed  by  sub-com- 
mittees of  the  board,  who  conferred  with  the  masters, 
but  rarely  consulted  him.  In  fact  it  was  said  that 
his  work  consisted  chiefly  in  writing  an  annual 
report.  Now  all  this  has  changed.  The  superin- 
tendent is  present  at  all  the  meetings,  nominates 
the  teachers,  conducts  the  administration  under 
the  general  direction  of  the  board,  and  is  the  real 
executive  head  of  public  education,  bearing  to  the 
board,  as  he  should,  a  relation  similar  to  that  of 
the  head  of  any  industrial  institution  to  the  board 
of  directors.  A  process  of  this  kind  has  been 
quietly  going  on  in  many  parts  of  the  country,  and 
thus  the  administration  of  the  public  schools,  as 
well  as  the  teaching  of  the  children,  is  becoming  a 
great  profession,  whose  members  have  a  permanent 
career  in  the  public  service  —  a  career,  by  the  way, 
as  wide  as  the  nation,  for  an  officer  who  has  made 


§  127]     Examples  of  the  Proper  Relation      295 

his  mark  in  one  place  may  be  called  to  a  position 
in  another  city.  All  this  will  greatly  improve 
education;  while,  far  from  becoming  bureaucratic, 
the  administration  of  the  schools  has  come  into 
closer  touch  with  the  aspirations  of  the  people. 
The  teaching  profession  has  become  thereby  more 
respected  and  more  popular,  as  well  as  more  in- 
fluential than  ever  before.  If  the  other  branches  of 
city  work  could  be  put  on  a  similar  basis,  the  ques- 
tion of  municipal  reform  would  be  wellnigh  solved. 
Examples  of  expert  management  controlled  by 
representatives  of  the  public,  are  to  be  found  through- 
out the  political  system  of  England,  which  was 
never  that  of  an  absolute  monarchy,  and  has  never 
become  quite  a  democracy  of  the  traditional  type, 
but  has  ever  carried  the  forms  of  one  age  over  into 
the  next  and  thus  combined  some  of  their  virtues. 
The  administration,  national  or  local,  is  habitually 
conducted  by  a  permanent  official,  who  devotes  his 
whole  life  to  the  career,  and  has  under  him  a  staff 
of  permanent  subordinates,  professional  like  him- 
self, but  acting  under  the  constant  supervision  and 
control  of  a  cabinet  minister  or  a  committee  of  the 
local  council.  The  minister,  or  the  committeeman, 
may  learn  much  about  the  business  if  he  remains 
long  in  office,  but  he  rarely  becomes,  or  pretends  to 
be,  an  expert. 

127.   The  True  Relation  between  Experts  and  Representatives 
of  the  Public 

The  relation  which  ought  to  exist  between  the 
expert   in    charge    and    the   non-professional    under 


296  Where  Public  Opinion  Cannot  Apply    [§  1^27 

whose  control  he  acts  has  never  been  more  acutely 
discussed  than  by  Bagehot  in  the  chapter  on 
"Changes  of  Ministry"  in  his  English  Constitu- 
tion. The  pith  of  the  matter  is  in  his  quotation 
from  Sir  George  Cornewall  Lewis,  "It  is  not  the 
business  of  a  Cabinet  ^Minister  to  work  his  depart- 
ment. His  business  is  to  see  that  it  is  properly 
worked."  The  expert  is  essentially  the  executive 
officer  who  carries  on  the  administration,  suggests 
improvements,  advises  his  chief  on  all  questions  of 
policy  that  arise,  but  gives  effect  loyally  to  any 
policy  which  his  chief  decides  to  foUow.  His  chief, 
representing  the  public,  ought  not  to  administer 
directly,  but  keep  the  office  from  getting  into  ruts, 
stimulate  it  when  lethargic,  and  lay  down  the 
general  policy  to  be  pursued.  In  short,  the  expert 
is  responsible  to  his  chief  for  good  service,  the  latter 
to  the  public  for  the  pohcy  pursued  and  the  general 
result. 

In  order  that  the  chief  who  represents  the  pubHc 
should  control  the  administration,  it  is  neither  nec- 
essary nor  wise  for  him  to  go  much  into  details, 
because  the  public  wants  not  means  but  ends,  not 
methods  but  results;  and  the  layman  is  at  the 
mercy  of  the  expert  in  matters  of  detail,  whereas 
if  he  confines  his  attention  to  results  and  is  a  man 
of  force  and  good  sense,  he  will  produce  an  effect. 
Nor  is  it  necessary  that  public  sentiment  should 
be  brought  to  bear  at  every  rung  of  the  official 
ladder.  It  is  enough  that  it  is  brought  to  bear  at 
the  top  with  strength  enough  to  affect  the  whole 
structure.     To  change  the  policy  of  a  railroad,  the 


§  127]  Experts  and  the  Public  297 

president  does  not  need  to  replace  all  the  employees, 
or  even  the  ones  in  the  higher  posts.  If  they  are 
capable  men,  and  not  mutinous,  he  needs  only  to 
steer  them  on  a  different  course;  and  in  the  same 
way  experience  shows  how  a  vigorous  English  min- 
ister can  guide  his  whole  body  of  officials,  although 
no  new  man,  except  himself,  comes  into  the  depart- 
ment. In  fact,  the  railroad  president  and  the 
minister  find  it  easier  to  carry  out  their  policies 
than  they  would  if  all  the  men  holding  positions 
that  require  discretion  were  replaced  by  others, 
however  intelligent,  who  were  unfamiliar  with  their 
duties.  The  filling  with  politicians  of  all  the  im- 
portant posts  in  a  national  business,  like  the  post 
office  or  the  custom  house,  is  not  a  means  of  bring- 
ing public  opinion  to  bear  on  public  work.  It 
simply  prevents  any  intelligent  policy  from  being 
carried  out.  Apart  from  general  questions  of  policy 
to  be  decided  by  the  Postmaster  General  or  the 
Secretary  of  the  Treasury,  what  the  public  really 
desires  is  simply  the  maximum  eflSciency  in  the  ser- 
vice, and  that  can  be  attained  only  by  a  corps  of 
highly  trained  men  in  high  administrative  positions. 
It  is  for  this  reason  that  the  frequent  shifting  of 
English  cabinet  ministers  from  one  department  to 
another  is  not  inconsistent  with  efficient  manage- 
ment. If  they  were  to  conduct  their  departments 
directly,  such  changes  would  mean  inexperience  and 
bad  administration,  but  if  their  function  is  merely 
oversight,  a  fresh  eye  is  not  necessarily  an  evil,  and 
may,  as  Bagehot  insists,  even  be  an  advantage.  In 
this  connection  it  may  be  observed  that  since  one  of 


298  Where  Public  Opinion  Cannot  Apply    [§  128 

the  effects  of  popular  government,  with  its  rapidly 
shifting  party  majorities,  has  been  a  more  frequent 
change  of  the  political  executive  officers,  there  is  the 
greater  need  of  expert  administrators  to  carry  on 
the  public  service  with  the  efficiency  that  modern 
civilization  demands.^ 

128.   Methods  of  Creating  the  True  Relation 

The  proverb  that  there  are  many  ways  of  kill- 
ing a  cat,  and  none  of  them  always  succeeds,  is  true 
of  political  machinery.  The  right  relation  between 
expert  administrators  and  their  political  chiefs  may 
exist  under  very  different  forms.  It  cannot  be 
provided  by  law,  because  from  their  very  nature 
the  functions  of  the  two  classes  of  officers  cannot 
be  accuratel}^  defined.  It  is  a  distinction  of  influ- 
ence rather  than  of  power.  Nor  can  it  be  secured  by 
adopting  any  particular  organization.  The  impor- 
tant thing  is  to  recognize  the  principle,  and  make  use 

^  J.  Ramsay  McDonald,  himself  a  socialist  and  a  leader  of  the 
Labor  Party  in  the  House  of  Commons,  says  on  this  subject 
{Socialisjn  and  Government,  vol.  ii,  pp.  34-35),  "The  apparent  incon- 
gruity of  a  Minister  being  at  the  Education  Office  one  year  and  the 
Admiralty  the  next,  disappears  when  examined  at  close  quarters. 
The  Cabinet  is  not  a  collection  of  experts  on  any  one  subject. 
Were  that  so  its  corporate  responsibility  for  government  would  be 
unreal.  It  is  a  committee  of  men  of  good  common  sense  and  intelli- 
gence, of  business  ability,  of  practical  capacity,  in  touch  with  public 
opinion,  on  the  one  hand,  and  by  reason  of  that,  carrying  out  a 
certain  policy,  and,  on  the  other,  it  is  the  controller  of  a  staff  of 
experts  who  know  the  details  of  departmental  work.  The  perma- 
nent officials  obey  their  minister;  he  obeys  public  opinion.  The 
Cabinet  is  the  bridge  linking  up  the  people  with  the  expert,  join- 
ing principle  to  practice.  Its  function  is  to  transform  the  mess- 
ages sent  along  sensory  nerves  into  commands  sent  through  motor 
nerves.  It  does  not  keep  the  departments  going;  it  keeps  them 
going   in  certain  directions." 


§  128]  Methods  of  Creating  the  True  Relation  299 

of  forms  that  will  tend  to  emphasize  it.  The  ex- 
pert is  permanent,  irrespective  of  changes  of  party, 
and  therefore  he  must  keep  clear  of  politics  in  his 
office  and  out  of  it,  and  as  his  duties  are  quite 
apart  from  the  political  questions  which  the  people 
are  called  upon  to  decide,  he  ought  never  to  be  elected, 
but  appointed  without  limit  of  time.  The  political 
chief,  on  the  other  hand,  whose  functions  are  dis- 
tinctly political,  ought  to  be  in  close  touch  with 
public  opinion,  and  should  from  time  to  time  give 
account  of  his  stewardship.  Hence  he  ought  to 
come  up  for  reelection  or  reappointment  at  intervals 
long  enough  to  show  what  he  has  done,  not  merely 
to  promise  what  he  will  do 

Another  mode  of  giving  emphasis  to  the  distinction 
between  the  two  classes  of  officials  is  furnished  by 
the  matter  of  salaries.  The  expert  ought  to  devote 
his  whole  time,  and,  in  fact,  his  whole  life,  to  the 
public  service,  preferably  being  forbidden  to  follow 
any  profession  or  business  of  his  own,  and  he  ought 
to  be  paid  a  liberal  salary,  large  enough  to  attract 
able  men  into  the  career.  But  the  political  chief 
ought  not  to  receive  a  compensation  greater  than 
the  sacrifice  he  is  expected  to  make.  A  cabinet 
oflBcer  who  must  leave  his  home  and  live  at  the 
capital,  and  the  mayor  of  a  large  city  whose  time 
must  be  wholly  engrossed  by  municipal  work,  ought 
to  be  paid  full  salaries;  but  a  member  of  a  city 
commission,  or  the  political  head  of  a  city  depart- 
ment ought  not,  as  a  rule,  to  manage  the  details  of 
his  office  and  the  work  of  supervision  ought  not  to 
take  so  much  of  his  time  as  to  prevent  him  from 


300  "Where  Public  Opinion  Cannot  Apply   [§  129 

paying  attention  to  his  private  affairs.  He  ought, 
therefore,  to  receive,  if  anything,  only  a  compara- 
tively small  compensation,  and  there  is  in  such 
cases  a  distinct  advantage  in  paying  nothing  because 
this  tends  to  discourage  the  man  who  seeks  office, 
not  in  order  to  render  public  service,  but  for  the 
pay  it  brings. 

129.   Recruiting  Experts  for  the  Public  Service 

The  question  of  selecting  permanent  adminis- 
trative officials  is  by  no  means  a  simple  one.  From 
England  we  have  taken  the  idea  of  civil  service 
reform,  the  plan  of  appointment  by  merit  instead 
of  political  pull,  and  we  have  thereby  reduced 
enormously  the  field  of  party  patronage  and  spoils, 
but  hitherto  we  have  adopted  the  system  only  in 
part.  We  have  applied  it  mainly  to  places  requiring 
work  of  a  mechanical  or  routine  character,  and  very 
little  to  the  higher  oflSces  involving  the  exercise 
of  discretion.  Complaints  are  heard  from  Wash- 
ington that  a  position  which  is  permanent  confers 
no  real  authority,  while  one  that  gives  any  scope 
for  initiative  is  not  permanent.  The  civil  service 
examinations  are,  indeed,  adapted  to  that  condition, 
for  they  are  designed  primarily  to  test  the  immedi- 
ate fitness  of  the  candidate  for  the  duties  he  will  be 
called  upon  to  perform;  and  this  is  easy  to  measure 
in  the  case  of  mechanical  or  routine  work,  but  very 
difficult  to  ascertain  when  initiative,  resourceful- 
ness, good  judgment,  and  willingness  to  assume 
responsibility  are  in  question.  These  are  personal 
qualities  which  a  written  examination  reaches  but 


§  1^29]  The  Recruiting  of  Experts  301 

faintly.  Civil  service  commissioners  have,  no  doubt, 
authority  to  scrutinize  the  history  of  the  candidates, 
with  the  reputation  they  have  made  in  other  posi- 
tions, and  thus  to  ascertain  their  qualifications  as 
any  other  employer  might  do;  but  so  far  as  they 
exercise  this  function  they  occupy  the  place  of 
appointing,  rather  than  of  examining,  boards.  In 
any  case  they  are  seeking  to  discover  the  immediate 
fitness  of  men  already  trained,  not  the  future 
capacity  of  men  still  ignorant  of  the  work.  Yet 
this  last  is  an  important  thing  to  do,  because  many 
branches  of  the  public  service  have  no  counterpart 
in  private  affairs,  and  the  knowledge  they  require 
can  be  obtained  only  by  experience  in  the  depart- 
ment itself. 

In  great  private  industries  employers  do  not 
seek  mainly  for  persons  already  trained,  but  take 
promising  young  men,  promoting  them  as  they 
show  talent,  and  this  is  in  fact  the  practice  of  the 
British  Government.  WTien  the  Crown,  after  the 
mutiny,  took  over  from  the  East  India  Company 
the  administration  of  India,  a  commission  was 
appointed  to  consider  the  method  of  recruiting  the 
civil  service  there,  and  Lord  Macaulay,  who  wrote 
the  report,  laid  down  the  principle  that  the  com- 
petitive examinations  for  appointment  ought  not  to 
cover  the  special  subjects  needed  by  an  official  in 
India,  such  as  the  native  languages  and  the  laws 
and  institutions  of  the  country,  because  ambitious 
young  men  with  good  prospects  of  a  career  at  home 
would  not,  on  a  mere  chance  of  success  in  the  com- 
petition, spend  a  year  or  two  in  studies  that  would 


302  Where  Public  Opinion  Cannot  Apply   [§  129 

be  useless  in  case  of  failure.  The  examination  was 
therefore  confined  to  the  subjects  ordinarily  pursued 
at  a  university,  lea\dng  special  training  to  be  acquired 
after  the  selection  was  made;  and  the  candidates 
have,  in  fact,  been  of  excellent  calibre.  The  system 
was  applied  later  to  the  various  departments  of  the 
English  government,  and  is  now  in  general  use  for 
recruiting  the  higher  grade  of  permanent  officials  of 
the  nation. 

The  Dutch  colonial  office  followed  the  opposite 
plan,  examining  the  candidates  upon  the  subjects 
they  would  need  in  Java,  an  arrangement  which 
required  them  to  study  for  a  couple  of  years  at  the 
Indian  Institute  at  Delft.  But  the  class  of  men  who 
did  so  was  unsatisfactory,  and  after  a  careful  inves- 
tigation, the  plan  was  abandoned  a  dozen  years  ago. 

These  examples  show  the  advantages  of  a  system 
which  does  not  attempt  to  measure  immediate  fit- 
ness for  the  work  to  be  done,  but  merely  tests  the 
general  education  and  ability  of  young  men  who 
are  expected  to  make  their  o^ti  way  up  the  steps 
of  the  service  by  their  usefulness  after  they  have 
entered  it.  Few  people  would  be  rash  enough  to 
suggest  that  the  English  examinations  should  be 
copied  here.  For  many  reasons  they  are  out  of 
place.  But  it  is  not  inconceivable  that  some 
method  could  be  devised  that  would  bring  men  into 
the  public  service  young,  would  eliminate  politics 
in  their  selection,  and  would  offer  them  a  prospect 
of  a  permanent  career.  That  many  ambitious  and 
capable  young  men  would  be  glad  to  seize  the 
opportunity  so  offered  no  one  who  knows  them  well 


§  129]  The  Recruiting  of  Experts  303 

will  doubt.  But  first  we  must  reach  a  conviction 
that  we  want  them.  If  we  recognize  the  need,  the 
means  will  be  found  and  the  rest  will  follow.  As 
Professor  Goodnow  said,  in  discussing  the  case  of  per- 
manent experts  in  the  higher  posts  of  the  national 
service,  "That  this  can  be  accomplished  by  any 
changes  in  the  law  may,  perhaps,  be  doubted. 
That  it  will  be  accomplished,  as  soon  as  an  educated 
and  intelligent  public  opinion  demands  it,  is  a  moral 
certainty."  ^ 

Many  people  feel  that  because  popular  govern- 
ment is  new  it  must  be  lasting.  They  know  it  is 
a  vital  part  of  the  spirit  of  the  age,  which  they 
assume  to  be  permanent.  But  that  is  the  one  thing 
the  spirit  of  the  age  never  is.  It  would  not  deserve 
its  name  if  it  were;  and  when  any  spirit  of  the  age 
has  become  universally  recognized,  it  is  time  to 
scan  the  horizon  for  signs  of  a  new  era.  Whether 
popular  government  will  endure  or  not  depends 
upon  its  success  in  solving  its  problems,  and  among 
these  none  is  more  insistent  than  the  question  of 
its  capacity  both  to  use  and  to  control  experts,  a 
question  closely  interwoven  with  the  nature,  the 
expression,  and  the  limitations  of  public  opinion. 

^Politics  and  Administration,  p.  121. 


Appendix  A 


Results  of  the  Referendum  and  Initiative  in 
Switzerland 


20 


306 


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315 


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6 


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365 


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Results  of  the  General  Referendum  and 
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368 


Appendix  B 


04 


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369 


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370 


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371 


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372 


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SnpoA  nop 

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People    consulted    on    (juestion    of    "New    Jerusa- 
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389 


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391 

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392 


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o 
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393 


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Index 


Index 


Aargau  page 

Results  of  referendum  in 166,311 

Results  of  initiative  in       200,  311 

Advertisement 

This  an  age  of 57-59 

Arizona 

Referendum 

Adoption  of 174 

Results  of 368 

Initiative,  results  of 205,  368 

Arkansas 

Referendum 

Adoption  of 174 

Results  of 176,  370 

Initiative,  results  of 205,  370 

Athens 

Use  of  the  lot  in 47,  245 

Lack  of  experts  in  public  life 264 

Bagehot,  Walter 296,  297 

Basle,  City 

Results  of  referendum  in       315 

Basle,  Rural 

Results  of  referendum  in 167.185,186,318 

Results  of  initiative  in 200,  318 

Benoist,  Charles 121 

Bern 

Results  of  referendum  in       .....    V    ...    .165,  185,  186,322 
Results  of  initiative  in 200,  203,  322 

Boston 

Local  referendum  in       196-197 

Boss,  the 

Natural  history  of 103 

A  broker  in  private  privileges 105 


40^2  Index 

Boss,  the  (continued)  page 

Sources  of  his  power 135,  137-138 

(See  also  Parties  and  Politicians) 

Brigkam,  A.  D ' 288 

Brolcers 

Need  and  influence  of 60 

Politicians  act  as 61,  64,  67 

Bryce,  James 7,  35,  37,  71,  104,  146 

Bureaucracy 

Dread  of  in  America 106,  109,  270,  289 

Burke,  Edmund 66,  124 

California 

Referendum 

Adoption  of 174 

Residts  of 177-182,  183,  371 

Initiative,  results  of 205,  371 

Civil  Service  Reform 

Its  limitation. in  America 107,  275-276,  300 

Examinations  in  England 301 

Colorado 

Referendum 

Adoption  of 174 

Results  of 183,184,189,190,372 

Initiative,  results  of 204,  206,  215,  372 

Commhision 

City  government  by 285 

Its  relation  to  use  of  experts 286 

Common  Will 

Of  Rousseau  and  public  oijinion 8 

Compromise 

Prejudice  against 52,  63 

Consent 

As  a  basis  of  government 9 

And  force 10-12 

Courts 

Power  to  hold  statutes  unconstitutional 9-10 

Const  it  ut  ional  Restra  ints 

Merits  of 9-10,44-45 

Corruption 

Causes  of 104 

Forms  of 134-135 


Index  403 

Creeds  page 

How  far  opinions 16 

Cridge,  Alfred  D 211 

Croly,  Herbert 103 

Democracy 

Slowly  learned 38 

Meaning  of 57 

Its  fear  of  experts 270 

Desire 

And  opinion 26 

Dicey,  A.  V 64 

Dickinson,  G.  Lowes 42 

Direct  Primary.     (See  Primary,  direct.) 

Dissent 

Freedom  to  express 37 

Dwpriez,  Leon 123 

Elections 

How  far  they  express  opinion     25,  71  et  seq.,  91, 113  et  seq.,  137-139 

In  Spain 113 

Private  influences  in 137 

England 

Theory  of  mandate 73 

And  United  States 76 

Difference  in  meaning  of  elections 76-79,  259 

Solidarity  of  parties   .    .    .    .     78-79,92,118-120,125-128,132,139 
Committees  on  private  bills 248 

Exjperts 

Growing  use  of  in  industrial  life 49,  272 

Lack  of  in  Athens 264 

Lack  of  in  Rome  under  the  Republic 265 

Their  use  under  the  Empire 267 

In  monarchies 268 

Their  absence  in  democracies 270 

In  English  government 295,  297 

Need  of  in  public  life 49-50,  262,  271 

Little  used  in  American  public  life 274,  282 

Use  of  in  German  cities 281 

Use  of  in  English  cities 281-282 

The  municipal  program 283 

Relation  of  commission  government  to      285 


404  Index 

Experts  (continued)  page 

Control  of 289 

In  public  education 294 

Proper  relation  to  lay  superiors 291  et  seq. 

Method  of  creating  it 298 

Methods  of  recruiting 300 

In  England 302 

In  Holland 301 

Fads 

Knowledge  of 22-24 

As  basis  of  opinion 22-24 

Difficulty  in  ascertaining 47  et  seq. 

Examples 50 

Farrand,  Max 118 

Force 

As  a  basis  of  government 11 

Ford,  Henry  J 70 

Freedom 

To  express  dissent 37 

To  organize 39 

In  religion 41-42 

Freeman,  E.  A 12 

Frontier 

Its  effect  on  public  life  in  America 109 

Galveston 

Plan  of  commission  government 286 

Geneva 

Results  of  referendum  in 167,  185,  186,  328 

Results  of  initiative  in 201,  202,  328 

Goodnow,  F.  J 284,  303 

Grisons 

Results  of  referendum  in 276,  330 

Results  of  initiative  in 200,  330 

Habit 

Its  loss  of  force 58 

Iladlei/,  A.  T 15 

IJarrnony 

Of  principles  a  basis  of  opinion 20 


Index  405 

Harmony  (continued)  page 

Of  interests 28-30 

Doctrine  of 28-30 

Hart,  A.  B 104 

Headlam,  James  W 47,  245 

Hirschfeld,  Otto 208 

Holman,  Frederick  V 213,  229 

Hoist,  H.  von 72 

Homogeneity 

Essential  for  public  opinion 34-36 

Houston 

Plan  of  commission  government 286 

Hughes,  Governor 

His  bill  for  direct  primaries 150 

Idafio 

Referendum,  adoption  of 174 

Initiative 

Its  nature 162,  198 

In  Switzerland 

Its  tendencies 201 

Its  small  use 202 

Results  in  the  Swiss  Confederation 199,  306 

InAargau 200,311 

In  Bern 200,  203,  322 

In  Geneva   201,  202,  328 

In  Grisons 200;  330 

In  Lucerne 200,  333 

In  Rural  Basle 200,  318 

In  Schaffhausen 200,  336 

In  Schwyz 201,  338 

In  Solothum 200,  341 

In  St.  Gall 201,  334 

In  Thurgau 200,  347 

In  Valais - 200,  350 

In  Vaud 185,  353 

In  Zurich 200,353 

In  America 
Results  in 

Arizona 205,  368 

Arkansas 205,  376 

California 205,  371 


400  Index 

Initiative  (continued)  page 

Colorado 204,206,215,372 

Maine 204,  376 

Missouri 204,  377 

Montana 204,  379 

New  Mexico 205,  380 

Oklahoma 204,  381 

Oregon 203,204,200,207-217,384 

South  Dakota 203,  205,  395 

Utah 398 

Laws  enacted 205 

Proposals  rejected 207 

Complex  measures  proposed 211 

How  far  an  expression  of  public  opinion  .    .    .    209  et  seq.,  224-226 

Evidence  from  stability 216 

Defects  of 217 

Is  it  public  or  private 221 

Class  of  measures  suited  for 231 

Not  a  panacea 233 

Intensity 

Of  opinion 12-14 

Its  effect 12-14 

Irreconcilables 

And  public  opinion 10-12,  32 

And  race  feeling. 31 

Cause  of 34 

Janissaries 17 

Johnson,  L.  J 224 

Jury 

A  sample  of  the  public 242 

Safeguards  surrounding  it 243 

Special  juries 246 

Landsgemeinde 152,  164 

Legislatures 

Recent  distrust  of 130 

Its  causes 131 

Tendency  to  play  politics 131-133 

Local  interests  in 133,  143 

Private  interests  in 131,1^7-139,143 


Index  407 

Legislatures  (continued)  page 

Defects  exaggerated 139,  141 

Remedies  in  United  States  negative .   144-146 

Excessive  restrictions  in  United  States 145,  146 

Leupp,  Francis  E 292 

Lewis,  Sir  G.  C 17.  50,  96,  296 

Lobbying 

Different  kinds  of 135-136 

Lodge,}i.C 151 

Log-rolling 134 

Lot 

Use  of  in  Athens 47,  245 

Use  of  in  Venice 245 

Lowell,  Francis  C 104,  119 

Lucerne 

Results  of  referendum  in 168,  333 

Results  of  initiative  in 200,  333 

Macdondd,  J.  R 158,  298 

MacGregor,  Ford  C 285,  286,  287 

Machine,  the 

Its  causes 140 

(See  also.  Politicians  and  Parties  and  Boss) 

Maine 

Referendum 

Adoption  of 174 

Results  of 182-183,  189,  376 

Initiative,  results  in 204,  376 

Maine,  Sir  H.  S 3,  62,  65,  73 

Maitland,Y.Vi 221 

Majority 

Not  enough  for  public  opinion 4-7 

Basis  of  their  right  to  rule 9 

Artificial  nature  of 61,  68 

Mandate 

Theory  of  in  England 73 

Massachusetts 

Results  of  constitutional  referendum 171,  187-188 

The  Luce  Law 226 

Public  hearings 250 

Its  benefits 252 

Means,  D.  McG 104 


408  Index 

Michigan  page 

Results  of  constitutional  referendum 170,  188 

Minghctti,  Marco 108 

Minority 

Duty  to  submit 11,  15,  44 

In  religion 42 

Missouri 

Referendum,  adoption  of 174,  377 

Initiative,  results  in 204,  377 

Montana 

Referendum,  adoption  of 174,  379 

Initiative,  results  in 204,  379 

Municipal  Government 

In  Europe 278,  280 

In  America 278-280,  282 

(See  also  Commission) 

Munro,  W.  B 281 

Mutual  ConfiAence 

Lack  of  in  America 141 

Nebraska 

Referendum,  adoption  of 174 

Nevada 

Referendum 

Adoption  of 174 

Results 178,  379 

New  Mexico 

Referendum 

Adoption  of 174-189 

Results  of 380 

Initiative,  results  in 205,  380 

Oberhaltzer,  E.  P 173,  187 

Oldahoma 

Referendum 

Adoption  of 174 

Results  of 178-181,  182,  184,  381 

Initiative,  results  in 204,  381 

Opinion 

Not  always  rational 16,  18 

Real  if  part  of  believer's  philosophy 19 


Index  409 

opinion  (continued)  page 

Otherwise  must  be  based  on  facts 22 

Opinion  and  desire 26 

(See  also  Public  Opinion) 

Oregon 

Referendum 

Adoption  of 174 

Use  of  emergency  clause 176 

Results 178-179,182,189,190,227,384 

State  pamplilet  of  measures 191-192 

Effect  on  legislation 229 

Initiative 

Adoption  of 203,  204 

Results  in 206,  207-217,  384 

Organization 

Its  political  effect 39-40 

Distorts  public  opinion 86  et  seq. 

Ostragorski,  M 104 

Parties 

Causes  of 64  et  seq.,  101 

Organs  for  formulating  opinions 66-67 

Frame  the  issues 69 

Confuse  the  issues 71,  75 

Greater  solidarity  in  England  than  in  United  States  .    .     76-79,  92 

Multiplicity  in  continental  Europe 79 

Their  nature 80 

Slow  changes 81 

Causes  of 81 

Their  effect 82-84 

Cause  a  bias 86 

Cause  false  lines  of  division 88-90 

Distort  public  opinion 92 

Influence  of  extreme  elements 93,  95 

Influence  of  moderate  elements 93 

Prevent  popular  vagaries 96 

An  obstacle  to  despotism 97 

Unscientific  criticism 99-101 

Legislation  by 102 

Argument  for 144 

Dealing  with  private  interests 158 


410  Index 

Parties  (continued)  page 

In  municipal  government 87 

Conventions  in  United  States  at  first  popular 140 

(See  also  Politicians  and  Boss) 

Pasteur,  Louis 57 

People,  the 

Can  say  only  "Yes"  or  "No" 69,91 

In  America  undertake  too  much 103,105-110,260 

Poliiician^ 

As  brokers 61 

Of  public  opinion 67 

Of  private  privileges 64 

"Work  through  parties 64 

Cause  of 103,  108 

Popular  Interest 

In  man  greater  than  in  measures 53 

Primaries,  direct 68,  102,  149 

Cost  of 151 

Prirate  Bills 

In  England 248 

Proportional  Representation 122-124 

Public  Hearings 

In  America 249 

Practice  of  in  Massachusetts 250 

Practice  of  in  other  states 254 

Public  Officers 

Three  kinds  of 240 

Often  combined 256 

Difficulty  of  selection 258 

Methods  of  selection 260 

Public  Opinion 

Must  be  public 3 

Majority  not  enough 4-7 

Unanimity  not  required 7 

Does  not  include  irreconcilablea 12 

Case  of  the  Southern  States 5,  33 

Effect  of  race  feeling 31 

Need  of  homogeneity 34-36 

Effect  of  intensity 12-14 

It  involves  freedom  to  express  dissent 37 

And  to  organize 39 

It  must  be  opinion 10  et  seq. 


Index  411 

Public  Opinion  (continued)  page 

Conditions  essential  for 28  et  seq. 

Not  necessarily  rational 29 

How  far  must  be  based  on  fact 46 

Knowledge  of  facts  difficult 47  et  seq. 

Examples 50 

Limitation  of  in  religion 41,  42 

In  other  matters 42,  44 

Uncertainty  in  predicting 53 

Distortion  by  parties 86  et  seq.,  92 

Methods  of  expressing 113  et  seq. 

By  elections 25,  71  et  seq.,  91 

Direct  expression 152  et  seq. 

By  the  referendum 159  et  seq.,  181  et  seq.,  190 

By  the  initiative 209  et  seq.,  224-226 

Evidence  from  stability 216 

Evils  from  failure  to  perceive  its  limits 142-144 

Why  given  effect 239 

Opinion  by  sample 242 

Need  of  impartiality 136 

(See  Opinion,  Representation) 


Race  Feeling 31,  35 

Recall,  the 147 

Referendum 

Compidsory  and  optional 164 

Reasons  for 155 

Distrust  of  legislature 155 

Separation  of  issues 157 

Criticisms  of 156 

In  England 157,  158 

How  far  an  expression  of  public  opinion 

159  et  seq.,  181  et  seq.,  190,  224-226 

Its  effect  negative , 102 

Results  in  Switzerland  not  radical 168 

In  the  Confederation 165,  306 

InAargau 166,  186,311 

In  Bern 165,  185,  186,  322 

In  Geneva 167,  185,  186,  328 

In  Grisons 167,  330 

In  Lucerne 1C8,  333 


412  Index 

Referendum  (continued)  page 

In  Rural  Basle 167,  185,  186,  318 

In  Schaffhausen 167,  186,  336 

In  Schwyz 167,  186,  338 

In  Solothurn 167,  185,  341 

In  St.  Gall 167,  186,  334 

InThurgau 166,186,347 

In  Valais 167,  185,  350 

In  Vaud 168,  185,  353 

In  Zurich 166,  185,  186 

Its  use  in  America 169  et  seq. 

On  Constitution  changes 169-170,  187 

Results  m  Michigan 170,  188 

Results  in  Massachusetts 171,187-188 

On  special  acts 171 

On  ordinary  laws 173,  188  et  seq. 

Use  of  emergency  clause 174 

Results  in  Arizona 176,  368 

Arkansas 176,  370 

California 177,  182,  183,  371 

Colorado 177,183,184,189,190,372 

Maine 178,  182,  183,  189,376 

Missouri 174,  204-377 

Montana 178,  379 

Nebraska 174 

Nevada 178,  379 

New  Mexico 178,  189,  380 

Oklahoma 178,  181,  381 

Oregon 178,182,189,190,191-192,384 

South  Dakota 179,  180,  183,  189,  190,  395 

Utah 398 

Number  of  laws  rejected 176 

Character  of  laws  rejected 180 

Smallncss  of  the  vote  cast 184-191 

Fines  for  not  voting 191 

State  pamphlet  of  measures 192 

The  local  referendum 

Its  meaning 193-194 

Its  advantages 195 

Size  of  vote  in  Boston 196-197 

Delay  sometimes  harmful 226 

Effect  on  the  legislation 228-230 


Index  413 

Referendum  (continued)  page 

Class  of  measures  suited  for 231 

Not  a  panacea 233 

Reinsch,  Paul 156,  249,  254,  255 

Representation 

Of  the  nation  and  of  constituencies 115-117 

In  England 117-120,  125 

In  the  United  States 117-120,  125 

Of  interests 121 

Theories  of  delegation  and  personal  judgment 124-128 

Former  faith  in  representation 129 

Recent  distrust  of 130 

Three  kinds  of 240 

Often  combined 256 

By  sample 242 

The  jury 242 

Rotation  in  office 243 

Use  of  the  lot      244 

Selected  samples 246 

Use  of  in  public  affairs 247 

Private  bill  committees  in  England 248 

Public  hearings  in  America 249 

Practice  of  in  Massachusetts 250 

Practice  of  in  other  states 254 

Difficulty  of  selecting  officers 258 

(See  also  Legislatures) 

Rohmer,  Friedrich 65 

Rome 

Lack  of  experts  under  the  Republic 265 

Their  rise  under  the  Empire 267 

Rotation  in  Office 

Its  object 106,  243 

Rousseau,  J.  J 8,  28,  87 

Ryan,  Chief  Justice 261 

St.  Gall 

Results  of  referendum  in 167,  186,  334 

Results  of  initiative  in 201,  334 

Sample 

Public  opinion  by      242 

(See  Representation) 


414  Index 

Schaffhausen  page 

Results  of  referendum  in 167,  185,  186,  336 

Results  of  initiative  in 200,  336 

Schicyz 

Results  of  referendum  in 167,  186,  338 

Results  of  initiative  in 201,  338 

Shams 

Use  of 3-4 

In  parties 89 

Social  Compact 8,  9 

Solothum 

Results  of  referendum  in 167,  185,  341 

Results  of  initiative  in 200,  341 

South  Dakota 
Referendum 

Adoption  of 174 

Use  of  emergency  clause 174-175 

Results 179-181,183,189,190,395 

Effect  on  legislation 228 

Initiative,  results  of 203,  205,  395 

Special  Legislation 

Its  evils  in  America 107,  119,  143 

Log-rolling 133 

Forms  of  corruption 134-135 

Amount  of  in  United  States 146 

Attempts  to  restrict 145 

In  England 144 

Private  bill  procedure  in  England 248 

Sumner,  Charles 262 

Swiss  Confederation 

Results  of  referendum  in 165,  186,  306 

Results  of  initiative  in 199,  306 

Tarde,  Gabriel 26,  30,  37,  65 

Thurgau 

Results  of  referendum  in 166,  185,  347 

Results  of  initiative  in 200, 347 

Totcn  Meeting 152 

Its  merits 153 

Unanimity 

Not  needed  for  public  opinion 7 


Index  415 

Un  ited  States  n .  r.  i. 

PAGE 

And  England 

Difference  in  meaning  of  elections 70-79,  259 

Differencesof  opinion  within  its  parties  80, 118-120, 125-128, 132, 140 
(See  also  Parties,  Special  Legislation,  Referendum,  Initiative, 
Experts,  etc.) 

ITRen,  W.  S 229 

Utah 

Referendum  not  in  effect 398 

Votes  in  Constitutional  Amendments 398 

Valais 

Results  of  referendum  in 1G7,  185,  186,  350 

Results  of  initiative  in 200  350 

Vaud 

Results  of  referendum  in 168,  185,  353 

Results  of  initiative  in 353 

Von  Hoist,  H.  (See  Hoist,  H.  von.) 

Wallas,  Graham 43 

Washington 

Referendum,  adoption  of I74 

Wendell,  Barrett 32 

Zurich 

Results  of  referendum  in 185,  186,  353 

Fines  for  not  voting 191 

Results  of  initiative  in 200  353 


RAILROADS,  RATES  AND  REGULATION 

By  WILLIAM  Z.  RIPLEY,  Ph.D. 

Nathaniel  Ropes,   Pbofessor   of   Economics   in   Hauvabd   University 

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